Filed 6/17/13

                            CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



SOUTHERN CALIFORNIA EDISON
COMPANY,
                                                     E053938
        Cross-complainant and Appellant,
                                                     (Super.Ct.No. VCVVS032374)
v.
                                                     OPINION
CITY OF VICTORVILLE,

        Cross-defendant and Respondent.


AMANDA LAABS,
                                                     E054740
        Plaintiff and Appellant,
                                                     (Super.Ct.No. VCVVS032374)
v.

SOUTHERN CALIFORNIA EDISON
COMPANY,

        Defendant and Respondent.




        APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa,

Judge. Affirmed in part and reversed in part with directions.



                                            1
      Richard Harris Law Firm, Richard A. Harris; Ferguson Case Orr Paterson, Wendy

C. Lascher and John A. Hribar for Plaintiff and Appellant.

      Patricia A. Cirucci, Brian A. Cardoza; Greines, Martin, Stein & Richland,

Timothy T. Coates and Carolyn Oill for Defendant, Cross-complainant, Appellant, and

Respondent.

      Graves & King, Harvey W. Wimer III and Dennis J. Mahoney for Cross-defendant

and Respondent.

      Amanda Laabs was injured when the car in which she was riding collided with

another car in an intersection and then hit a light pole owned by Southern California

Edison Company (SCE). Laabs sued various parties, including the City of Victorville

(the City), the County of San Bernardino (the County), and SCE.

      The present opinion deals with consolidated appeals from judgments following (1)

the trial court‟s granting of SCE‟s motion for judgment on the pleadings as to Laabs‟s

second amended complaint, and (2) the trial court‟s order sustaining, without leave to

amend, the City‟s demurrer to SCE‟s first amended cross-complaint.

      We first address the ruling on SCE‟s motion for judgment on the pleadings, which

we reverse. We then address and affirm the trial court‟s order sustaining the City‟s

demurrer without leave to amend.




                                            2
             I. SCE‟S MOTION FOR JUDGMENT ON THE PLEADINGS

A. Introduction

       This is Laabs‟s fourth appeal, and the second involving SCE. In the first two

appeals we affirmed summary judgments in favor of the County and the City.1 In the

third appeal, we reversed summary judgment in favor of SCE. (Laabs v. Southern

California Edison Co. (2009) 175 Cal.App.4th 1260, 1279 (Laabs III).) In Laabs III, we

held that there existed triable issues of fact as to whether SCE owed a duty of care to

motorists relative to the placement of street lights immediately adjacent to the traveling

lanes of a high-speed roadway. (Id. at p. 1269.)2




       1 Laabs v. County of San Bernardino (May 11, 2007, E039694) [nonpub. opn.];
Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 (Laabs II).

       2  More specifically, we held: “To the extent SCE‟s control over the initial
placement of the luminaire is of relevance, SCE did not demonstrate that no triable issue
of fact exists as to its lack of control. It was undisputed that the luminaire was owned
and maintained by SCE. Pursuant to the franchise agreement entered into between SCE
and the City of Victorville, it was further undisputed that „[a]ll poles, wires, lights, and
electrical apparatus installed by Company in furnishing service under [the franchise
agreement], shall be placed as to work the least possible public and private
inconvenience . . . .‟ (Italics added.) In achieving this end, there is nothing in the
agreement indicating that SCE does not have input and control over the luminaire‟s
placement. . . . Even if the final decision for placement of the luminaire was made by the
City of Victorville and/or developer, it does not put to rest the issue of SCE‟s input into
the decision or establish that SCE was precluded from installing luminaires at other, safer
locations within or outside of the street right-of-way. Thus, even if a public utility can
avoid liability for a negligently placed light pole by claiming a government agency
required a precise placement, there is insufficient evidence presented here to establish
such a requirement. Simply stated, SCE failed to establish that no triable issue of fact
exists as to its role and its exercise of control in determining the placement of the
luminaire.” (Laabs III, supra, 175 Cal.App.4th at p. 1277, fn. omitted.)

                                             3
       Following remand, SCE moved for judgment on the pleadings based on the

argument that the superior court lacked subject matter jurisdiction over the present action.

(See Code Civ. Proc., § 438, subd. (c)(1)(B)(i).) Its motion was premised on an argument

that Public Utilities Code section 17593 precluded the superior court from entertaining

any lawsuit dealing with matters that are under the exclusive jurisdiction of the Public

Utilities Commission (PUC or Commission). It argued that the placement or location of

street lights fell under the exclusive province of the PUC, and the trial court could not

entertain an action for damages because it would interfere with the PUC‟s exercise of its

plenary power. More particularly, SCE contended that upon SCE‟s filing of its tariff with

the PUC and the PUC‟s approval of said tariff, the conditions contained therein had the

force and effect of law. SCE submitted that the location of the subject pole was part of

the approved tariff and that under the express conditions of the tariff, SCE is relieved of

all liability for acting in accordance therewith. (See Pub. Util. Code, § 489, subd. (a).)

       The trial court granted the motion and the present appeal ensued. Because the trial

court does have subject matter jurisdiction over the present matter, we reverse.

B. Background

       In Laabs‟s second amended complaint, she alleges the following facts. Laabs was

a passenger in a car driven by James Dimeo. Dimeo was driving northbound on

Ridgecrest Road in Victorville. Dimeo‟s car was struck by another car at an intersection


       3 All further statutory references are to the Public Utilities Code unless otherwise
indicated.

                                              4
with Pebble Beach Drive, spun out of control and across Ridgecrest Road, and hit a

concrete light pole erected 18 inches away from the curb. Laabs was injured. The light

pole was owned and maintained by SCE.

       Laabs sued SCE on the theory that SCE acted negligently by installing and

maintaining the light pole so close to the curb.

C. Judicially Noticed Documents

       SCE‟s motion for judgment on the pleadings relies exclusively on documents of

which it requested the trial court take judicial notice. First is an “Agreement for Service

for Street Lighting” entered into between the City and SCE on August 12, 1977.

Attached as exhibits to this agreement are PUC “Schedule No. LS-1,” which deals with a

“Utility-Owned System” and “Schedule No. LS-2,” dealing with a “Customer-Owned

Installation.”

       The second document is a “Schedule LS-1,” dated June 5, 1992, dealing solely

with company-owned systems.4 It includes a reference to “Decision 92-06-020.”5 The

tariff sets forth certain rates applicable to “street and highway lighting service where

[SCE] owns and maintains the street lighting equipment and associated facilities . . . .” It

       4   SCE refers to this schedule as a “tariff.” In PUC proceedings, a tariff is “„a
schedule “showing all rates, tolls, rentals, charges, and classifications . . . together with
all rules, contracts, privileges, and facilities which in any manner affect or relate to rates,
tolls, rentals, classifications, or service.”‟ [Citation.]” (Southern Cal. Edison Co. v.
Public Utilities Com. (2000) 85 Cal.App.4th 1086, 1097.) We will refer to the six-page
schedule as the “1992 LS-1” or the “tariff.”

       5
       This appears to refer to the decision in Matter of Southern California Edison
Company (1992) 44 Cal.P.U.C.2d 471 (Decision No. 92-06-020).

                                               5
includes two “SPECIAL CONDITIONS” relevant here. Special condition 6.a. provides:

“The applicant for street light service shall specify the type of service, lamp size, and

location of street lights.” Special condition 9 provides: “Liability of Company: The

Company shall not, by taking action pursuant to its tariffs, be liable for any loss, damage,

or injury, established or alleged, which may result, or be claimed to result, therefrom.”

       The third document is a one-page document dated November 21, 1975, and

revised April 11, 1979; it appears to be a schematic drawing which includes the

descriptions, “City of Victorville” and “Commercial Corner Utility Location.”6 It shows

a utility pole placed 18 inches from the curb.

       The trial court granted the request for judicial notice as to each document.

       Based on these documents, SCE contends that Laabs‟s action is barred by section

1759. Specifically, SCE argues that when the PUC approved SCE‟s tariff, it exercised its

authority over subject matters addressed in the tariff; the tariff required SCE to place

street lights where the City wanted them and included a limitation of liability provision;

because the location of street lights and the limitation of liability are addressed in the

tariff, any issues related to them are subject to the PUC‟s exclusive jurisdiction and any

action addressing them is barred by section 1759.




       6The copy of the street corner design indicates it was an exhibit to the deposition
of John McGlade. That deposition is not part of our record.

                                               6
       Initially, we note that Schedule No. LS-2 (Customer-Owned Installation) appears

not applicable. Laabs‟s second amended complaint alleges that SCE owns the specific

street light installation.

       Further, the pleading does not allege the date the street light was installed; it is

therefore left to some conjecture as to whether the 1976/1977 Schedule No. LS-1 or the

1992 LS-1 applies. This date may be important because if one were to accept SCE‟s

position as to the significance of the release of liability, the release is contained only in

the 1992 LS-1, not the 1976/1977 schedules. Additionally, there are no conditions in the

earlier schedules referencing “location of street lights.” As such, any approval by the

PUC of those schedules would not have entailed the siting of street lights. For purposes

of our opinion, however, we assume the applicability of the 1992 LS-1.7

       Lastly, there is nothing about the street corner schematic depicting the location of

a utility pole that suggests it was submitted to the PUC or relates to any tariff or PUC

decision.

D. Standard of Review

       “Code of Civil Procedure section 438, subdivision (c)(1)(B)(i) . . . provides that a

motion for judgment on the pleadings may be brought by a defendant on the grounds that

the court „has no jurisdiction of the subject of the cause of action alleged in the


       7  As set forth in Laabs III, Robert Binns, a supervisor in SCE‟s street and outdoor
lighting department, declared that the subject concrete light pole was erected in 1993.
(Laabs III, supra, 175 Cal.App.4th at pp. 1264-1265.) Said declaration is not part of the
present record.

                                               7
complaint‟ . . . . [¶] „The standard for granting a motion for judgment on the pleadings is

essentially the same as that applicable to a general demurrer, that is, under the state of the

pleadings, together with matters that may be judicially noticed, it appears that a party is

entitled to judgment as a matter of law.‟ [Citation.]” (Bezirdjian v. O’Reilly (2010) 183

Cal.App.4th 316, 321, fn. omitted.) “[J]udgment on the pleadings must be denied where

there are material factual issues that require evidentiary resolution.” (Schabarum v.

California Legislature (1998) 60 Cal.App.4th 1205, 1216.)

       “We review de novo a trial court‟s judgment on an order granting a motion for

judgment on the pleadings. [Citation.] „On appeal from a judgment on the pleadings, the

court assumes the truth of, and liberally construes, all properly pleaded factual allegations

in the complaint. [Citation.] The court may also consider . . . matters subject to judicial

notice.‟ [Citation.]” (Bezirdjian v. O’Reilly, supra, 183 Cal.App.4th at p. 321.) “„In

determining whether the pleadings, together with matters that may be judicially noticed,

entitle a party to judgment, a reviewing court can itself conduct the appropriate analysis

and need not defer to the trial court.‟ [Citation.]” (Id. at p. 322.) “In fact, we have need

not to defer . . . .” (Smiley v. Citibank (1995) 11 Cal.4th 138, 146.)

E. Legal Background

       1. Jurisdiction of the PUC

       “„The commission 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,


                                              8
establish rules, hold various types of hearings, award reparation, and establish its own

procedures. (Id., §§ 2, 4, 6.) The commission‟s powers, however, are not restricted to

those expressly mentioned in the Constitution: “The Legislature has plenary power,

unlimited by the other provisions of this constitution but consistent with this article, to

confer additional authority and jurisdiction upon the commission . . . .” (Cal. Const., art.

XII, § 5.)‟ [Citation.] [¶] Pursuant to this constitutional provision the Legislature

enacted, inter alia, the Public Utilities Act. (§ 201 et seq.) That law vests the

commission with broad authority to „supervise and regulate every public utility in the

State‟ (§ 701)[8] and grants the commission numerous specific powers for [that]

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.] Accordingly, „The commission‟s authority has been liberally construed‟

[citation] . . . .” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893,

914-915.)

       “In particular, the commission has comprehensive jurisdiction over questions of

public health and safety arising from utility operations. Thus the commission is generally

authorized to require every public utility to „construct, maintain, and operate‟ its „plant,


       8  Section 701 provides: “The commission may supervise and regulate every
public utility in the State and may do all things, whether specifically designated in this
part or in addition thereto, which are necessary and convenient in the exercise of such
power and jurisdiction.”

                                              9
system, equipment, [or] apparatus‟ in such manner as to „safeguard the health and safety

of its employees, . . . customers, and the public . . . .‟ (§ 768.) To this end, the

commission is further empowered to prescribe the installation and use of „appropriate

safety or other devices,‟ and to require every utility to do „any other act which the health

or safety of its employees, . . . customers, or the public may demand.‟ [Citation.]” (San

Diego Gas & Electric Co. v. Superior Court, supra, 13 Cal.4th at p. 924.)

       “The PUC‟s most obvious regulatory authority includes the regulation of rates[.]”

(Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 270; see also Cal. Const., art.

12, § 6 [“The commission may fix rates . . . .”].) “Section 489, subdivision (a), requires

every public utility to file with the PUC a tariff—a schedule „showing all rates, tolls,

rentals, charges, and classifications . . . together with all rules, contracts, privileges, and

facilities which in any manner affect or relate to rates, tolls, rentals, classifications, or

service.‟ Such a tariff, when approved by the PUC, has the force of law.” (Pacific Bell v.

Public Utilities Com. (2000) 79 Cal.App.4th 269, 273-274, italics added.)

       In approving a tariff, the PUC has the power to control that which in “any manner

affect or relate to rates . . . or service.” (Pacific Bell v. Public Utilities Com., supra, 79

Cal.App.4th at p. 274.) As part of this power, the PUC may also limit the liability of the

utility to the public. In a case involving a telephone company tariff, the court explained

that the limitations on liability are “an equitable trade-off—the power to regulate rates

and to set them below the amount an unregulated provider might otherwise charge




                                               10
requires a concomitant limitation on liability.” (Los Angeles Cellular Telephone Co. v.

Superior Court (1998) 65 Cal.App.4th 1013, 1017-1018.)

        Further, and as directly relevant to the present motion, section 1759, subdivision

(a) states: “No court of this state, except the Supreme Court and the court of appeal, . . .

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.” (Italics added.)

        Bearing in mind the basic plenary power of the PUC, the Legislature has provided

for a limited scope of private action against a utility for damages. As set forth in section

2106: “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. . . . An action to

recover for such loss, damage, or injury may be brought in any court of competent

jurisdiction by any corporation or person.”

        2. The Relationship of Sections 1759, 2106, and Local Regulation to the Present

Facts

        The question before us is whether the present action for damages is precluded by

the overall grant of plenary power to the PUC by the Constitution and sections 701 and


                                              11
1759, or falls within the limited exception of section 2106. In addressing a similar issue,

the court in San Diego Gas & Electric Co. stated: “Addressing the question of statutory

construction, this court [in Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1] declared

the primacy of section 1759 and the correspondingly limited role of section 2106. The

[Waters] 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.] . . . „[T]he two sections must be construed in a

manner which harmonizes their language and avoids unnecessary conflict. Section 2106

reasonably may be interpreted as authorizing only those actions which would not

interfere with or obstruct the commission in carrying out its own policies.‟ [¶] Under 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 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.” (San Diego Gas & Electric Co. v. Superior Court, supra, 13

Cal.4th at pp. 917-918, fn. omitted.)

       As such, if the PUC (1) has the authority to regulate or otherwise establish policy

in a given area, and (2) has exercised that authority by regulation or policy, then the


                                             12
superior court may do nothing that hampers or interferes with that exercise of

jurisdiction, including awarding damages in a private action. (See generally San Diego

Gas & Electric, supra, 13 Cal.4th at pp. 914-934.) Stated another way, “[t]he [PUC] has

exclusive jurisdiction over the regulation and control of utilities, and that jurisdiction,

once assumed, cannot be hampered or second-guessed by a superior court action

addressing the same issue.” (Anchor Lighting v. Southern California Edison Co. (2006)

142 Cal.App.4th 541, 548.)

       With the above said, a city exercising its police powers may impose conditions

and regulations upon a public utility to the extent they are not in conflict with the exercise

of jurisdiction by the PUC. As explained in Orange County Air Pollution Control Dist. v.

Public Util. Com. (1971) 4 Cal.3d 945: “„[C]oncurrent jurisdiction . . . may well exist as

to some matters but . . . if . . . there is a direct confrontation with the jurisdiction

exercised by this Commission . . . the jurisdiction of this Commission in the matter is

either exclusive or paramount. . . .‟ [¶] . . . [T]he commission has been held to have

paramount jurisdiction in cases where it has exercised its authority, and its authority is

pitted against that of a local government involving a matter of statewide concern.” (Id. at

pp. 950-951, fn. omitted.)

       As stated in San Diego Gas & Electric Co. v. City of Carlsbad (1998) 64

Cal.App.4th 785: “The general authorization for a local entity‟s police power is found in

California Constitution, article XI, section 7: „A county or city may make and enforce

within its limits all local, police, sanitary, and other ordinances and regulations not in


                                                13
conflict with general laws.‟ California Constitution, article XI, section 9, subdivision (b)

permits municipalities to prescribe conditions and regulations for the operation of public

utility works by private entities.” (Id. at p. 795.)

         Finally, section 2902 provides that the chapter of the Public Utilities Code

governing the surrender of municipal control to the PUC “shall not be construed to

authorize any municipal corporation to surrender to the commission its powers of control

to supervise and regulate the relationship between a public utility and the general public

in matters affecting the health, convenience, and safety of the general public, including

matters such as the use and repair of public streets by any public utility, the location of

the poles, wires, mains or conduits of any public utility, on, under, or above any public

streets . . . .” (Italics added.)

F. Discussion

         1. The PUC Does Not Have Exclusive Jurisdiction Over the Location of Street

Lights

         As previously indicated, SCE‟s basic position is: (1) the PUC has the authority to

regulate the siting of light poles; (2) the PUC has exercised that authority by approving

the tariff. Included within the tariff is language dealing with “location of poles” and a

release of liability as to actions taken in compliance with the tariff. As such, SCE argues

that (3) allowing a plaintiff to recover damages resulting from actions pursuant to the

tariff would interfere with the PUC‟s jurisdiction and is thus precluded by section 1759.

We disagree.


                                              14
       As evident from the above, the PUC has general plenary power over utilities. At

the same time, local municipalities may, pursuant to their police power, regulate utilities

to the extent the regulation is not inconsistent with law. More specifically, a city may

control the location of utility poles within its jurisdiction.

       Initially, SCE has not cited to any specific PUC policy, regulation, decision or

study which indicates that it has exercised authority over the siting of street lights.

Indeed, the closest this court can come to determining whether the PUC has entered the

field of controlling the location of utility poles is in In re Competition for Local

Exchange Service (1998) 82 Cal.P.U.C.2d 510 (Decision No. 98-10-058).9 At one

portion of its order, the commission addresses its jurisdiction relative to section 2109. It

states: “The obligations of a city, county or other political subdivision to provide access

to [right-of-way] under its control is addressed under Part 3 of the [Public Utilities] Code.

The Legislature has expressly recognized the duties and responsibilities of a „municipal

corporation,‟ and the ability of a municipal corporation to retain or surrender control of

some of its powers to the Commission. Municipal corporations are expressly authorized

not to surrender the power to supervise and regulate the relationship between such public

utilities and the general public „in matters affecting the health, convenience, and safety of

the general public, including matters such as the use and repair of public streets by any


       9  Decision 98-10-058 does not deal with light poles. The decision deals with
access to poles by telecommunication companies. As indicated by the commission: “We
establish rules for [right-of-way] access in this decision pursuant to our jurisdictional
authority . . . .” (Decision No. 98-10-058 at p. 530.)

                                               15
public utility, the location of the poles, wires, mains, or conduits of any public utility, on,

under, or above any public streets . . . .‟ (Section 2902.) [¶] . . . [¶] . . . [L]ocal

governments thus may regulate the time, location, and manner of installation of telephone

facilities in public streets, [but] they may not arbitrarily deny requests for access by

public utilities . . . .” (Decision No. 98-10-058 at pp. 543-544; see also Southern Cal.

Gas Co. v. City of Vernon (1995) 41 Cal.App.4th 209, 217-218 [“The language of Public

Utilities Code section 2902 simply reflects that the location of pipelines beneath city

streets . . . [is a matter] for the municipal corporation, not the PUC.”].)

       The Commission goes on to explain that if the telecommunications company is

unable to resolve its dispute with the local entity as to siting and right-of-way access, then

it can apply to the PUC for a “certificate of public convenience and necessity.” (Decision

No. 98-10-058, pp. 544-545.) In so indicating, however, the PUC states: “We recognize

that the Commission lacks the jurisdiction to directly order a local governmental body to

grant access. In the event that we grant the siting authority sought in the application, it

will be the responsibility of the telecommunications carrier to notify the local

governmental body of the Commission‟s order. In the event that we grant such an

application, and the local governmental body still refuses to grant access in accordance

with the Commission order, the telecommunications carrier‟s recourse shall be to file a

lawsuit in the appropriate court of civil jurisdiction seeking resolution of the dispute over

access.” (Id. at p. 545.)




                                              16
       Here, the City‟s schematic depicting a street light located 18 inches from the curb

face indicates that the City has exercised control over the location of the street light. (See

§ 2902.) Although the PUC could perhaps exercise jurisdiction over the placement of

poles, nothing in the 1992 LS-1 or the PUC‟s related decision indicates that it has.

Indeed, it appears otherwise. As stated in special condition 6.a.: “The applicant [City of

Victorville] for street light service shall specify the type of service, lamp size, and

location of street lights.” (Italics added.) Thus, to the extent the PUC and the City had

concurrent jurisdiction over the location of street lights, the PUC, in accordance with San

Diego Gas & Electric Co. and its own construction of section 2902, allowed the City to

exercise its jurisdiction as to the siting of the street lights. As such, the City‟s exercise of

jurisdiction is not inimical to the Public Utilities Act.

       Although the PUC has the authority to regulate the siting of light poles as a

condition affecting or relating to the rates, tolls, rentals, classification, or service (see

§ 489, subd. (a)), the tariff in this case indicates that the City, not the PUC, has control

over the siting of light poles. We therefore reject SCE‟s argument that the PUC‟s

approval of the tariff constitutes an exercise of the PUC‟s jurisdiction over that subject

matter.

       The release of liability found in special condition 9 of the 1992 LS-1 is also

inapplicable. As provided: “The Company shall not by taking action pursuant to its

tariffs, be liable for any loss, damage, or injury, established or alleged, which may result,

or be claimed to result therefrom.” Because the placement of light poles was generally


                                               17
under the control of the City, SCE did not take any action with respect to the placement

of the light poles “pursuant to its tariffs.”10 As a result, the limitation of liability

provision is inapplicable.

       While defendant argues that a utility may limit its liability to the public by way of

a tariff, we note that all of the cases setting forth this proposition, save one, deal with

phone service and involve subscribers to the service. Additionally, and again with one

exception, the cases postdate and refer to the PUC decision in In re Telephone

Corporations (1970) 71 Cal.P.U.C. 229, wherein the Commission specifically

investigated “all rules, conditions or tariff provisions limiting the liability of telephone

corporations.” (Id. at p. 231.)

       We have not found and have not been cited to any PUC decision addressing

limitations on liability for utilities other than those providing phone services. Further, as

alluded to in Thrify-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1571, “[a]lthough

article XII, sections 4 and 6 of the California Constitution authorize the commission to

establish rates utilities may charge for their services, it is a debatable question as to

whether they empower the PUC to liquidate a utility‟s tort damages against third parties.”

(See also Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1238, fn. 15

       10  In Laabs III, we held that a triable issue of fact existed on the issue of duty.
We found that SCE failed to demonstrate that it did not exercise some control over the
placement of the street light. Although the 1992 LS-1 indicates that the City was to
select the placement of light poles, this does not preclude, from a practical standpoint,
SCE having input into or control over the placement of the street light. This issue is
clearly a fact-specific inquiry that cannot be resolved by way of a motion for judgment on
the pleadings.

                                               18
[inapplicability of limitation of liability provisions to cases involving personal injuries by

third parties].)

          In conclusion, we find that while the PUC may have concurrent jurisdiction with

the local entity relative to the placement of light poles, it did not, in this case, exercise

that authority. Moreover, there is nothing about an award of damages against SCE that

would directly contravene a specific order or decision of the commission, or would have

the effect of undermining a general supervisory or regulatory policy of the commission.

Therefore, under section 2106, the superior court has jurisdiction to maintain the present

action.

           II. CITY‟S DEMURRER TO SCE‟S FIRST AMENDED COMPLAINT

A. Introduction

          SCE did not file a timely governmental claim against the City before filing its first

amended cross-complaint naming the City as a cross-defendant. The trial court sustained

the City‟s demurrer without leave to amend based on SCE‟s failure to comply with the

government claims statute. Both at the trial level and on appeal, SCE contends it did not

need to file a claim because its cross-complaint for equitable indemnity was solely

defensive in nature. (See Krainock v. Superior Court (1990) 216 Cal.App.3d 1473

(Krainock).) We agree with the trial court and affirm the judgment entered thereon.

More particularly, we find that SCE‟s cross-complaint is based on facts outside of the

pleadings, of which the City was a party, such that the cross-complaint is not solely




                                               19
defensive in nature. Because of this, compliance with the Government Claims Act was

necessary.

B. Background

       In October 2003, Laabs filed her initial complaint against the driver, owners, and

manufacturer of the vehicle in which she was a passenger. Additional named defendants

were the driver of the other vehicle, as well as the City of Victorville and the County of

San Bernardino. The theory against the City and the County was that they were

“negligent in designing, constructing, maintaining, controlling and otherwise creating and

failing to correct a dangerous road condition due to inadequate sight distance and lack of

warning signs, devices and signals.” Fifty “Doe” defendants were named. Ten Doe

defendants were associated with the dangerous condition of public property. The

remaining Doe defendants were alleged to be associated in some way to the vehicle in

which Laabs was a passenger or the other vehicle involved in the accident.11

       11   Laabs filed an amended complaint on March 15, 2004. Although it is not in the
record on this appeal, it was a subject of our decision in Laabs II. In that case, we noted
the following allegations regarding the physical property involved in the accident:
“„Plaintiff was a passenger in a vehicle northbound on Ridgecrest Road driven by James
Dimeo, Jr., in the vicinity of its intersection with Pebble Beach Road in Victorville,
unincorporated County of San Bernardino. Another vehicle driven by Dorothy Jean
Specter was westbound on Pebble Beach Road stopped at a stop sign before attempting a
left turn to go south on Ridgecrest Road. There was inadequate sight distance so that
Specter did not perceive the approaching Dimeo vehicle which struck the Specter vehicle.
Based upon information and belief, the [City] is responsible for the design, construction,
maintenance and conrol [sic] of the southbound lanes of Ridgecrest Road. Based upon
information and belief, [County] is responsible for the northbound lanes of Ridgecrest
Road. Defendants [City] and [County] were negligent in designing, constructing,
maintaining, controlling and otherwise creating and failing to correct dangerous road
conditions due to inadequate sight distance and lack of warning signs, devices and
                                                                 [footnote continued on next page]

                                             20
        Laabs‟s original complaint makes no allegations of any condition of property

north of the intersection of Ridgecrest Road and Pebble Beach Drive. Additionally as to

the Doe defendants associated with the property, the allegations deal solely with

inadequate sight distance at the intersection and the absence of warning signs and signals.

Laabs‟s complaint additionally omits any allegation that the Doe defendants were

negligent in ways unknown to plaintiff.

        On April 14 and April 16, 2004, the City filed two successive cross-complaints.

The more recent cross-complaint named as cross-defendants each of the City‟s named

codefendants. It further alleged that unknown “Moe” cross-defendants were jointly and

severally liable for plaintiff‟s injuries “as alleged in the Complaint in this action. . . .”

(Italics added.) In its charging allegations, the City‟s cross-complaint went on to allege:

“9. If Plaintiff sustained damages as alleged in her complaint, these damages were

caused, entirely or in part, by Cross-Defendants as set forth herein: [¶] a. The County

of San Bernardino owned and controlled the northbound lanes of Ridgecrest Road and

Pebble Beach Drive, and if there was a dangerous condition thereon the County of San

Bernardino is responsible therefor; [¶] b. James Dimeo, Jr., operated his vehicle in a

negligent, careless, reckless and wanton manner, driving at a speed in excess of 100 miles

per hour while under the influence of alcohol and/or intoxicating drugs; [¶] c. Cross-



[footnote continued from previous page]
signals. The dangerous conditions created an unreasonable risk of injury to persons using
the roads and such dangerous conditions were a foreseeable cause of Plaintiff‟s injuries.‟”
(Laabs II, supra, 163 Cal.App.4th at p. 1252.)

                                               21
Defendants James Dimeo, Sr. and Tina Dimeo negligently supervised James Dimeo, Jr.,

their minor child, in that they knew of their child‟s dangerous tendency and propensity to

take and operate the vehicle involved in the collision without authorization and in a

reckless and careless manner. These Cross-Defendants failed to take the appropriate

action and corrective measures to prevent James Dimeo, Jr. from intentionally or

negligently inflicting harm on others. These Cross-Defendants further failed to secure

the vehicle to prevent unauthorized use by James Dimeo, Jr. Cross-Defendants‟ actions

and failure to act resulted in the injuries and damages sustained by Plaintiff; [¶] d. The

vehicle driven by James Dimeo, Jr. a 1999 Porsche Carrera, California License number

4GYX773, including its component parts, failed to perform in a manner reasonably to be

expected in light of its nature and intended function, including but not limited to failing to

stay under control and failing to provide adequate protection and restraint of its

occupants; [¶] e. Cross-Defendant Dorothy Jean Specter operated her vehicle

negligently at the time of the collision by failing to exercise due care to ensure that she

could enter safely into the roadway.”

       As with the complaint, the City‟s cross-complaint is based upon limited facts.

There is nothing in the cross-complaint that speaks to conditions of property that are

adjacent to the southbound lanes of Ridgecrest Road north of its intersection with Pebble

Beach Drive.




                                             22
        In May 2005, the trial court granted the City‟s motion for summary judgment as to

Laabs‟s complaint. An appeal followed.12 While the appeal was pending, Laabs filed

her second amended complaint. In this pleading, Laabs omitted the City and the County

as named defendants. She added SCE to the action. The alleged basis for SCE‟s liability

was its ownership of the luminaire and its dangerous proximity to the traveling lanes of

Ridgecrest Road. SCE was served with the second amended complaint on October 13,

2005.

        In November 2005, SCE filed a cross-complaint for indemnity and contribution

against James Dimeo and his parents. SCE also included an affirmative cause of action

for damages for the repair of the luminaire.13

        In July 2007, almost two years after being served with the second amended

complaint, SCE was granted summary judgment as to Laabs. Two years later, in July


        12 At the trial court level, in response to the City‟s motion for summary judgment,
Laabs introduced for the first time the alleged dangerousness of the luminaire, which was
located north of the intersection and immediately adjacent to the southbound lanes of
Ridgecrest Road. On appeal, we held that the City could not, given the state of the
pleadings, be found liable for the alleged dangerousness of the luminaire as it related to
the traveling lanes of Ridgecrest Road. As we explained: “The pleading does not
mention any facts involving the southbound lanes or, more importantly, the fact that the
Dimeo vehicle struck a luminaire, pole, or some similar object. In the amended
complaint, there is no explicit or implicit involvement of the luminaire. The additional
[undisputed] fact shifts the alleged dangerous condition to a portion of public property
not remotely referenced in the amended complaint. It attempts to predicate liability on a
totally different condition, not the least bit involved with the intersection or inadequate
sight distance.” (Laabs II, supra, 163 Cal.App.4th at p. 1258.)

         SCE‟s cross-complaint was filed in response to Laabs‟s second amended
        13
complaint wherein the City was not named as a defendant.

                                            23
2009, this court reversed the judgment. (See Laabs III, supra, 175 Cal.App.4th 1260.)

Following the Supreme Court‟s denial of SCE‟s petition for review, the matter was

remanded to the superior court in November 2009. Approximately three months later,

SCE filed a governmental claim against the City. In the claim, SCE sought

indemnification and costs of defense from the City based on the allegation that “[t]he

City made the decision with regards to the location of installation, type of equipment to

use, mounting height, type of light and wattage/light output for the area streetlights,

including the electrolier.” The claim was returned to SCE as being untimely.

       Thereafter, in January 2011, after filing another claim which was also returned as

untimely,14 SCE filed a first amended complaint seeking indemnification from the City.

In the cross-complaint, SCE alleged it substantially complied with the claims

requirement. In March 2011, the City filed a demurrer contending, among other

arguments, that SCE‟s cross-complaint was barred because of its failure to comply with

the Government Claims Act. The trial court agreed and sustained the demurrer.

Following the entry of judgment for the City, SCE filed the present appeal.

C. Standard of Review

       “On appeal from a judgment dismissing an action after sustaining a demurrer

without leave to amend, the standard of review is well settled. We give the complaint a

reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]




       14   The 2011 claim was premised on the same facts as the 2010 claim.

                                              24
Further, we treat the demurrer as admitting all material facts properly pleaded . . . . When

a demurrer is sustained, we determine whether the complaint states facts sufficient to

constitute a cause of action.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859,

865.) Where a cross-complaint seeks indemnity from a governmental entity stemming

from an underlying personal injury action, compliance with the claims statute is required.

(State of California v. Superior Court (1983) 143 Cal.App.3d 754, 757.) “Failure to

allege compliance with the claims statute renders the complaint subject to general

demurrer. [Citation.] [¶] . . . [¶] . . . [a cause of] action for damages is barred unless an

exception relieves them of this requirement.” (Bates v. Franchise Tax Bd. (2004) 124

Cal.App.4th 367, 382-383.)

D. Discussion

       Pursuant to Government Code section 901: “[T]he date upon which a cause of

action for equitable indemnity or partial equitable indemnity accrues shall be the date

upon which a defendant is served with the complaint giving rise to the defendant‟s claim

for equitable indemnity or partial equitable indemnity against the public entity.” A claim

for money damages relating to a cause of action for injury to a person must be filed not

later than six months of the date of accrual of the cause of action. (Gov. Code, §§ 905,

911.2, subd. (a).)

       “The claim filing requirements apply to „all claims for money or damages against

the [governmental entity] . . . for an injury for which the [entity] is liable.‟ [Citation.]”

(State of California v. Superior Court, supra, 143 Cal.App.3d at p. 757.)


                                              25
Notwithstanding SCE‟s prayer for declaratory relief, its cross-complaint “in essence

states a claim „for money or damages,‟ against the [governmental entity], „relating to a

cause of action . . . for injury to person,‟ and hence is subject to the requirement that a

claim be presented „not later than [six months] after the accrual of the cause of action.‟

[Citations.]” (Ibid.)

       Here, both parties to the appeal agree that SCE did not comply with the applicable

claim filing requirement. Laabs‟s second amended complaint was served on SCE on

October 13, 2005; SCE did not file a claim until January 2010, more than four years

later.15

       On appeal, SCE contends it is excused from filing a claim against the City because

its cross-complaint is solely a defensive pleading and as such the governmental claim

requirements do not apply. To support its position, SCE relies on Krainock, supra, 216

Cal.App.3d 1473, wherein the court held that a defendant may file a defensive cross-

complaint for indemnity against a public entity which has already filed a cross-complaint

against it without first filing a claim. We disagree with SCE that Krainock is applicable

to the present facts.

       In Krainock, plaintiff Fiorello filed a personal injury action against defendants

Krainock and the Poway Unified School District. Fiorello claimed that Krainock struck


       15  Even if its claim for equitable indemnity was viewed as being a claim not
related to a “cause of action . . . for injury to person,” thus allowing it to be filed “not
later than one year after the accrual of the cause of action” (Gov. Code, § 911.2), there is
still no question that SCE‟s claim was not timely filed.

                                              26
him during a “fracas” at a school athletic event. The school district was sued on a

premises liability theory. (Krainock, supra, 216 Cal.App.3d at pp. 1475-1476.) At the

time of filing its answer, the school district filed a cross-complaint for indemnity,

apportionment, and declaratory relief against Krainock. Krainock thereupon answered

the cross-complaint and, without filing a governmental claim against the school district,

filed a cross-complaint against the school district for the same relief sought by the school

district in its cross-complaint. (Ibid.)

       The Court of Appeal held that Krainock did not need to comply with the claims

statute before filing his cross-complaint. (Krainock, supra, 216 Cal.App.3d at pp. 1478-

1479.) The court stated: “The primary purpose of the governmental claims act is to

apprise the governmental body of an imminent legal action so that the entity may

investigate and evaluate the claim and, where appropriate, avoid litigation by settling

meritorious claims. Thus, the act should not be allowed to become a snare for the unwary

litigant if its stautory purposes have been satisfied.” (Id. at p. 1477.) In applying this

principle, the court stressed that “Krainock thus seeks to defend both the complaint and

the cross-complaint on the same set of facts. . . . He thus contends his cross-complaint

will require no new investigation of the facts beyond that which [the school district]

already performed in preparing its pleadings.” (Id. at pp. 1476-1477, italics added.)

       Such is not the case here. We first note that the City never filed a cross-complaint

in which SCE was a named cross-defendant. Thus from its inception, SCE‟s argument is

misplaced.


                                              27
       To the extent the City‟s cross-complaint naming “Moes 1-30” could be construed

as a cross-complaint against SCE, SCE‟s argument that its cross-complaint is purely a

defensive pleading is still unsupportable. SCE‟s cross-complaint goes beyond the set of

facts upon which the City defended Laabs‟s complaint and upon which the City‟s cross-

complaint was premised. As a result, in order to defend the cross-complaint filed by SCE

it would have to engage in new investigation beyond that which it already performed in

preparing its initial answer and cross-complaint. As such, compliance with the claims

statute would be necessary.

       All of Laabs‟s allegations against the City dealt with inadequate sight distance at

the intersection and the absence of warning signs and signals. The complaint made no

reference to a luminaire or any condition of property north of the intersection of

Ridgecrest Road and Pebble Beach Drive. There were no Doe allegations that any of the

Doe defendants were negligent in ways unassociated with the intersection or the vehicles

involved in the accident. Likewise, the City‟s second amended cross-complaint was

extremely focused as to the basis upon which the City was seeking indemnity. It was

limited to the allegations of the complaint and specifically alluded to the areas of the

cross-defendants‟ conduct for which the City was seeking indemnity or contribution.

There was nothing in the cross-complaint that remotely spoke to conditions of property

adjacent to the southbound lanes of Ridgecrest Road north of its intersection with Pebble

Beach Drive. There was nothing that broadened the scope of the persons from whom the

City was seeking indemnity or the facts upon which it was seeking indemnity.


                                             28
       The City‟s involvement in the litigation was clearly limited to the design of the

intersection, the design of Ridgecrest Road south of the intersection, and the signage for

northbound traffic leading up to the intersection. This is made abundantly clear by the

discussion in Laabs II wherein we stated: “The pleading does not mention any facts

involving the southbound lanes or, more importantly, the fact that the Dimeo vehicle

struck a luminaire, pole, or some similar object. In the amended complaint, there is no

explicit or implicit involvement of the luminaire. The additional [undisputed] fact shifts

the alleged dangerous condition to a portion of public property not remotely referenced in

the amended complaint. It attempts to predicate liability on a totally different condition,

not the least bit involved with the intersection or inadequate sight distance.” (Laabs II,

supra, 163 Cal.App.4th at p. 1258.)

       SCE‟s cross-complaint, which brings into play the City‟s involvement in the siting

of the luminaire north of the intersection of Ridgecrest Road and Pebble Beach Drive, is

clearly based on a set of facts different from the original complaint and the City‟s second

amended cross-complaint. To defend SCE‟s cross-complaint, the City would be required

to perform investigation of facts beyond that which the City already performed in

preparing its pleadings and participating in the original action.

       SCE‟s cross-complaint is far more than merely a defensive pleading to the City‟s

cross-complaint, which does not name SCE and does not state a cause of action for




                                             29
indemnity against SCE.16 As such, SCE was required to file a timely claim before

instituting its action against the City for indemnity.

       In its reply brief, SCE states: “If the City is correct, SCE is caught in a legal

Catch-22: SCE was required to present a claim for damages to the City within six

months after SCE was served with Laabs‟ amended complaint; however, even if SCE had

done so, it would still be barred from obtaining any relief from the City because the City

was already out of Laabs‟ case before SCE‟s claim was due. Not only can SCE not win,

it was barred from obtaining relief before it even knew it was involved in the case. This

result is contrary to both logic and law.” This is simply not correct.

       A “„defendant‟s equitable indemnity action is independent of the plaintiff‟s action

and a defendant is entitled to pursue his own indemnity action so long as the statute of

limitations on that action has not expired.‟” (Columbus Line, Inc. v. Gray Line Sight-

Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 631.) “„[U]nder the

governing provisions of . . . Code of Civil Procedure [section 428.10, subdivision (b)], a

named defendant is authorized to file a cross-complaint against any person, whether

already a party to the action or not, from whom the named defendant seeks to obtain

total or partial indemnity. . . .‟ [Citations.]” (Paragon Real Estate Group of San


       16 The court in Krainock, adopted a three-prong test for determining whether a
cross-complaint is purely defensive, thus being exempt from the claims requirements.
(Krainock, supra, 216 Cal.App.3d at pp. 1478-1479.) The present cross-complaint
clearly does not conform to the second prong of the test. As discussed, SCE‟s claims,
while arising out of the same accident, introduces claims unrelated to the facts upon
which the City participated in the underlying action.

                                              30
Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177, 183.) Finally, absent the

application of collateral estoppel or res judicata, the dismissal of a defendant from the

plaintiff‟s action, even by way of summary judgment, does not preclude another

defendant from pursuing indemnity, by way of cross-complaint, from the dismissed

defendant. (Frank v. State of California (1988) 205 Cal.App.3d 488, 493-495.)

       Here, there was nothing that precluded SCE from filing a timely claim and cross-

complaint against the City. The fact that the City had received a summary judgment did

not preclude SCE from moving forward with its cross-action in a timely manner.17




       17  Whether its cross-action would have been the subject of a motion for summary
judgment by the City is a matter which we do not address here. Based on the briefing in
the present matter, it is clear that SCE believes that the City‟s summary judgment as to
plaintiff‟s complaint would not act as a bar to SCE‟s cross-complaint under the theory of
collateral estoppel. The City argues that it would. We do not address this issue because
we affirm the trial court‟s decision based on the fact that SCE did not comply with the
appropriate governmental claims statutes.

                                             31
                                  III. DISPOSITION

      The judgment in favor of SCE and against Laabs is reversed. The court shall

vacate its order granting SCE‟s motion for judgment on the pleadings and enter a new

order denying that motion.

      The judgment in favor of the City and against SCE is affirmed.

      Laabs and the City shall recover their costs on appeal.

      CERTIFIED FOR PUBLICATION


                                                                KING
                                                                                       J.


We concur:

HOLLENHORST
          Acting P. J.

MILLER
                         J.




                                           32
