                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 5 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WILLIAM R. SARALE; JULIE ANN                    No.    16-15037
SARALE, individually, Trustee of the James
J. Cavalli Testamentary Trust, and Trusteee     D.C. No.
of the Eva M. Cavalli 2007 Trust,               2:14-cv-02573-TLN-CKD

                Plaintiffs-Appellants,
                                                MEMORANDUM*
 v.

CALIFORNIA INDEPENDENT SYSTEM
OPERATOR CORPORATION; PACIFIC
GAS & ELECTRIC COMPANY,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                     Argued and Submitted October 20, 2017
                           San Francisco, California

Before: W. FLETCHER and TALLMAN, Circuit Judges, and HOYT,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
      William and Julie Sarale appeal a Rule 12(b)(6) dismissal of their civil rights

complaint alleging a taking of their property and related claims. The Sarales claim

that Pacific Gas & Electric Company (“PG&E”) exceeded the scope of a 1915

easement permitting PG&E to trim walnut trees around high-voltage power

transmission lines running across Plaintiffs’ walnut farm. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

      Although the district court did not reach PG&E’s issue preclusion argument,

we may affirm on any ground supported by the record. Campbell v. State of

Washington Dep’t of Soc. & Health Servs., 671 F.3d 837, 842 n.4 (9th Cir. 2011).

The issues previously decided by the California District Court of Appeal and

California Public Utilities Commission (“CPUC”) collaterally estop the Sarales

from relitigating the same issues in their federal action. That is dispositive of their

claims, and we affirm on that basis.

      First, the California District Court of Appeal preclusively held that PG&E’s

easement existed as a matter of law, and “[t]he Sarales [had pled] no facts

suggesting that the plain terms of the PG&E right-of-way [were] ambiguous or

uncertain.” Sarale v. Pac. Gas & Elec. Co., 189 Cal. App. 4th 225, 245 (2010).

The court dismissed Plaintiffs’ lawsuit, concluding that CPUC had exclusive

jurisdiction to decide if PG&E’s trimming within 20 feet of the power lines to

avoid risk of fire was “unreasonable, unnecessary, or excessive[.]” Id. at 231. The


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holding as to the existence of the easement was “necessary to the determination of

jurisdiction and therefore ha[s] a preclusive effect” under California law. See

Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 767 (9th Cir. 2007) (citations

omitted).

      Second, CPUC preclusively held that PG&E’s trimming on Plaintiffs’

walnut farm was not excessive, but rather “necessary, proper, and reasonable in the

overall framework of consistent regulation and management of vegetation growth

near power lines.” Sarale, D-14-05-008 (Cal. Pub. Util. Comm’n May 7, 2014)

(modified decision dismissing complaint).

      As an initial matter, CPUC’s decision satisfies the Utah Construction

fairness test. See Plaine v. McCabe, 797 F.2d 713, 718–19 (9th Cir. 1986) (citing

United States v. Utah Const. & Min. Co., 384 U.S. 394, 422 (1966)). CPUC

adjudicated whether PG&E’s trimming was reasonable after the Sarales

participated in a five-hour evidentiary hearing and submitted evidence, testimony,

and briefing. Plaintiffs “had an opportunity, which [they] chose not to take, for

judicial review” of the agency decision by a California appellate court. See

Misischia v. Pirie, 60 F.3d 626, 630 (9th Cir. 1995); Cal. Pub. Util. Code § 1756.

      California’s collateral estoppel requirements are also satisfied. See Plaine,

797 F.2d at 720 (citing People v. Sims, 32 Cal. 3d 468, 484 (1982)). “[T]he issue

necessarily decided at the previous [proceeding]”—whether PG&E’s trimming was


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reasonable—“is identical to the one which is sought to be relitigated.” See Sims,

32 Cal. 3d at 484 (alteration in original). Moreover, “the previous [proceeding]

resulted in a final judgment on the merits,” and the Sarales were party to the prior

proceeding. Id. (alteration in original). In sum, CPUC’s now final decision

collaterally estops them from relitigating whether PG&E’s trimming was

reasonable. See Plaine, 797 F.2d at 718–20; see also Cal. Pub. Util. Code § 1709

(“In all collateral actions or proceedings, the orders and decisions of [CPUC]

which have become final shall be conclusive.”).

      Given the preclusive effect of these prior rulings, the Sarales’ claims cannot

withstand a Rule 12(b)(6) motion. There can be no taking under the Fifth

Amendment or California Constitution because PG&E acted within the scope of its

easement. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1028–29 (1992).

The conspiracy to defraud and fraud claim fails for the same reason: PG&E

lawfully exercised its rights under the easement, so Plaintiffs cannot prove

“damages resulting from reliance on a misrepresentation.” See Bldg. Permit

Consultants, Inc. v. Mazur, 122 Cal. App. 4th 1400, 1415 (2004). Neither can

Plaintiffs show an “unlawful interference,” as required to state a trespass claim, see

Girard v. Ball, 125 Cal. App. 3d 772, 788 (1981), or that PG&E interfered or

attempted to interfere with a state or federal constitutional or legal right—an




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element of their state civil rights claim, see Jones v. Kmart Corp., 17 Cal. 4th 329,

334 (1998).

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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