Filed 7/30/13 Koponen v. P G & E CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


BRIAN L. KOPONEN et al.,
         Plaintiffs and Appellants,
                                                                     A133174
v.
PACIFIC GAS & ELECTRIC                                               (San Francisco City & County
COMPANY,                                                             Super. Ct. No. CGC-06-454198)
         Defendant and Respondent;
CALIFORNIA CABLE AND
TELECOMMUNICATIONS
ASSOCIATION,
         Intervener and Respondent.



         Plaintiffs Brian Koponen and The Edith A. Hayes Trust (the Hayes Trust) sued, on
behalf of themselves and a putative class of others similarly situated, defendant Pacific
Gas & Electric Company (PG&E), a public utility. Plaintiffs own properties on which
PG&E has utility easements creating rights of way. Plaintiffs allege PG&E, without their
consent, trespassed on their properties by installing fiber-optic lines along its utility
easements and leasing or licensing rights in the fiber-optic lines to telecommunications
and Internet companies. Plaintiffs sought certification of their suit as a class action. The
trial court denied certification, ruling that individual questions predominate, and thus the




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matter is not suitable for class litigation. Plaintiffs contend the ruling was in error. We
disagree and affirm.1
                    I. PROCEDURAL BACKGROUND & FACTS
       This litigation has been previously before us. (Koponen v. Pacific Gas & Electric
Co. (2008) 165 Cal.App.4th 345 (Koponen I).) We quote our prior opinion to provide the
background of this litigation.
       “According to plaintiffs’ allegations, PG&E, by condemnation or private
agreement, obtained easements creating rights-of-way over plaintiffs’ properties for the
purposes of furnishing and supplying electricity, light, heat and power to the public.
Plaintiffs allege that at some time after 1990, PG&E began installing fiber-optic
telecommunications lines and wireless telecommunications equipment in the corridors
subject to the easements. PG&E later began leasing or licensing fiber-optic capacity and
telecommunications services to third parties, including leading telecommunications and
Internet companies. Plaintiffs claim by leasing or licensing its facilities to
telecommunications providers, PG&E exceeded the scope of the easements granted or
conveyed to it . . . .” (Koponen I, supra, 165 Cal.App.4th at pp. 348–349.)
       Plaintiffs allege PG&E obtained the Koponen easement in 1926 by condemnation,
and obtained the Hayes Trust easement in 1921 by agreement. By 2003 with respect to
the Koponen easement, and by 1998 with respect to the Hayes Trust easement, PG&E
had installed a “shield wire” at the highest point of its electric transmission towers such
that it crossed through the easements. Shield wire is 5/8 inches thick and has fiber-optic
cable imbedded in its core. In addition to its fiber-optic transmissions, shield wire is used
to protect the wires beneath it on the transmission towers from lightning strikes.
       Plaintiffs filed their initial complaint in 2006. PG&E demurred to the complaint
on three grounds, including the court’s alleged lack of jurisdiction under Public Utilities
Code section 1759 in favor of the Public Utilities Commission, and the unsuitability of

       1
        The trial court granted the California Cable and Telecommunications Association
(CCTA) leave to intervene in the action below. CCTA has filed a brief in this court on
behalf of PG&E’s position.

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class adjudication. (Koponen I, supra, 165 Cal.App.4th at pp. 348–350.) The trial court
sustained the demurrer without leave to amend on the jurisdictional ground, and did not
reach the other two grounds including class unsuitability. (Id. at p. 348.) We reversed
and held plaintiffs could maintain certain causes of action, including one seeking
damages for invasion of their property rights, i.e., trespass. (Id. at pp. 356–359.)
       Subsequent to our decision in Koponen I, plaintiffs filed a first amended complaint
whose gravamen is trespass on their property rights. Plaintiffs repeated their allegations
that the easements were for the purposes of transmitting electricity, light, heat, and
power, and PG&E exceeded the scope of the easements by installing and leasing the
fiber-optic cable without the owners’ consent, amounting to trespasses on their
properties. Plaintiffs seek damages for the physical intrusion, including the alleged
diminishing of their property values.
       Plaintiffs moved to certify the following class, subject to exclusions not pertinent
here: “All persons in California whose property has been subjected to an easement by
PG&E . . . to transmit communications other than PG&E’s electricity-related internal
communications without the express right to do so.”
       The trial court denied the motion to certify in a lengthy and well-reasoned ruling.
The court based its denial on three separate grounds: (1) the easements must be
interpreted on an individual basis to determine their scope and other issues regarding
liability; (2) trespass damages must be determined on an individual, property-specific
basis; and (3) plaintiffs had failed to show the superiority of class adjudication. We will
discuss the trial court’s ruling in more detail below.
                                     II. DISCUSSION
       We review the denial of a motion for class certification for abuse of discretion.
(Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326−327 (Sav-On
Drug Stores).) Generally, an order granting or denying certification will not be disturbed
on appeal unless it is not supported by substantial evidence, it rests on improper criteria,
or it rests on erroneous legal assumptions. (Fireside Bank v. Superior Court (2007) 40
Cal.4th 1069, 1089 (Fireside Bank).)


                                              3
       The prerequisites for a class action are well-known: “the existence of an
ascertainable class and a well-defined community of interest among the class members.
[Citation.]” (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 (Richmond).)
In addition, there must be a showing that class adjudication is superior to other methods
of resolving the dispute. (Fireside Bank, supra, 40 Cal.4th at p. 1089.) The community
of interest requirement “embodies three factors: (1) predominant common questions of
law or fact; (2) class representatives with claims or defenses typical of the class; and
(3) class representatives who can adequately represent the class. [Citation.]” (Richmond,
supra, at p. 470; see Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.)
       The proponent of class action certification bears the burden of showing the
propriety of class adjudication. This burden includes a proper showing of predominance
of common questions of law and fact. (Washington Mutual Bank v. Superior Court
(2001) 24 Cal.4th 906, 922.) The class action proponent must present substantial
evidence that such common issues predominate. “[T]his means ‘each [class] member
must not be required to individually litigate numerous and substantial questions to
determine his [or her] right to recover following the class judgment; and the issues which
may be jointly tried, when compared with those requiring separate adjudication, must be
sufficiently numerous and substantial to make the class action advantageous to the
judicial process and to the litigants.’ [Citation.]” (Id. at pp. 913–914.)
       The trial court found the present case is inappropriate for a class action because
common questions of fact and law do not predominate. “[A] class action cannot be
maintained if each individual’s right to recovery depends on facts peculiar to that
individual. [Citation.]” (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th
799, 809.)
                                          Liability
       The core question in the present case, as the trial court found and plaintiffs
conceded below, is the interpretation of the easements to determine whether PG&E
exceeded their scope by using them to provide telecommunications services. The trial
court noted several legal principles defining the interpretation of easements. A court


                                              4
determining the scope of an easement uses the same interpretive rules that apply to the
construction of contracts. (Kerr Land & Timber Co. v. Emmerson (1965) 233 Cal.App.2d
200, 219.) An instrument conveying an easement must be construed by a consideration
of its own terms, unless the instrument is ambiguous. (Sarale v. Pacific Gas & Electric
Co. (2010) 189 Cal.App.4th 225, 245.) If there is ambiguity in the conveyance of an
express easement, a court “may look to surrounding circumstances and the relationship of
the parties and the properties involved . . .” and must “give effect to the mutual intent of
the parties. [Citation.]” (Christian v. Flora (2008) 164 Cal.App.4th 539, 550.)
       In light of these principles, the trial court concluded the interpretation of the
PG&E easements “would require highly individualized inquiries including, but not
limited to, the following: (1) what specific language appears in each easement; (2) when
was each easement granted or conveyed; (3) what were the circumstances surrounding
the grant or conveyance of each easement; (4) what was the intended scope of each
easement; (5) what, if any, oral or written modifications were made to each easement;
and (6) what, if any, additional communications occurred between the parties to each
easement.”
       The trial court noted plaintiffs had provided samples of easements showing they
were drafted “at different time periods, some of them dating back almost a hundred
years.” Plaintiffs acknowledged below “that the facts and circumstances that existed at
the time that the granting language was originally drafted would establish the intended
scope of the easements.” Plaintiffs agree with that principle in their opening brief on
appeal. The trial court concluded “the facts and circumstances that existed at the time
each easement was drafted is going to vary dramatically from one case to the next, or at
least involve disparate and different circumstances.”
       The trial court rejected plaintiffs’ contention that individualized review would be
obviated by the court’s review of samples of easements from three categories of
easements defined by plaintiffs. The trial court noted the first group contained easements
silent with respect to communications wires, while the second group contained some
easements not necessarily limited to communication uses pertinent to transmission of


                                              5
electricity. “[T]he interpretation of those easements would give rise to a myriad of
individualized factual inquiries.”
       The trial court noted the evidence was disputed whether PG&E gave notice to, and
obtained consent from, individual property owners for the use of their easements for
telecommunications purposes. “One would have to examine the individual circumstances
of each purported class member to determine whether he or she received notice from
PG&E and whether he or she expressly or impliedly authorized PG&E to use the
easements for telecommunications purposes.”
       The court further noted PG&E and CCTA had submitted “persuasive evidence”
indicating the process by which PG&E acquired the easements “was done on an
individual basis.” Easements were negotiated at arm’s length on an individual or case-
by-case basis, and sometimes there were revisions of particular easement language or
side agreements. “This [c]ourt concludes that the individual procurement of each
easement pursuant to [arm’s] length negotiations raises a myriad of individualized issues
regarding the mutual intent of the parties as to the scope of each easement.”
       “In short, this [c]ourt concludes that common questions do not predominate over
individual questions with respect to issues on liability. That conclusion alone is sufficient
to support the ultimate conclusion reached by this [c]ourt that this motion for class
certification should be denied. In other words, what has been said up to this point
constitutes an independently sufficient basis on which this [c]ourt denied class
certification.”
       There is no question this conclusion is based on proper legal criteria. It is
supported by substantial evidence. A sampling of the easements provided by CCTA in
its respondent’s brief markedly demonstrates the variation in form and wording among
the easements. For instance, some are one page long and include only terse language
granting rights, while others are nine or more pages long and describe the rights granted
in considerable detail. Some are form easements with typed-in details while others
appear to be original documents. Some are formal condemnation documents.



                                              6
       The varied language regarding the precise purposes for which PG&E may use the
easements is striking. Various easements grant PG&E rights for “electric transmission”;
electrical transmission “and for all purposes connected therewith”; wires “for telephone
and telegraph purposes in connection with [electricity] transmission and distribution”; use
of telephone lines “in connection with [PG&E’s] business”; electrical transmission lines
and “private” telephone lines; “telephone and telegraph wires” or lines “for
communications purposes” with no “private” limitation; construction of facilities such as
“wires,” “cables,” “fixtures,” and “appurtenances”; use of wires “for the distribution of
electric energy and for communication purposes”; and “a tower line for the transmission
of electric energy.”
       It is patently obvious that the range of differences in wording and form will
require individualized interpretive analyses. The trial court correctly concluded common
issues do not predominate with regard to the interpretation of the easements.
       Plaintiffs observe that, before the deregulation of 1996, PG&E could not engage in
the business of general telecommunications. Since most of the easements were obtained
prior to that time, plaintiffs contend, in essence, that as a matter of law the easements did
not permit PG&E to engage in telecommunications business activities. Thus, they
contend, individual questions are not pertinent to a determination that
telecommunications uses are beyond the scope of the easements as a matter of law.
Plaintiffs miss the point. PG&E is not engaging in the telecommunications business―it
is allowing third parties to use its easements to engage in that business, in the same
fashion PG&E legitimately allows cable companies to use its utility poles. (See, e.g.,
Salvaty v. Falcon Cable Television (1985) 165 Cal.App.3d 798, 804–805.)
       Plaintiffs also argue the granting language in the various easements is
unambiguous and there are “no material linguistic differences” between the granting
language of the easements. As the above discussion indicates, this is simply not correct.2

       2
          Plaintiffs also contend the issues of notice to and consent of the property owner
are not pertinent and do not warrant individualized inquiries. This argument overlooks
the trial court’s factual findings. Plaintiffs also discuss a minor evidentiary ruling of the

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                                           Damages
         The issue of liability alone precludes class certification. Nevertheless, we will
briefly discuss the question of damages.
         “ ‘[A] class action is not inappropriate simply because each member of the class
may at some point be required to make an individual showing as to his or her eligibility
for recovery or as to the amount of his or her damages.’ [Citation.]” (Sav-On Drug
Stores, supra, 34 Cal.4th at p. 333.) But a trial court has discretion to deny class
certification “when it concludes the fact and extent of each member’s injury requires
individualized inquiries that defeat predominance.” (Evans v. Lasco Bathware, Inc.
(2009) 178 Cal.App.4th 1417, 1430.)
         The trial court found the individualized questions regarding damages prevent
common damage issues from predominating. “Insofar as plaintiffs seek compensatory
damages based on the diminution of the market value of each property or the value of the
use of each property, those measures of damages would require individualized inquiries
regarding, among other factors, (1) the character, use, and geographic location of the
property, (2) the location of the easement on the property, and (3) the time period during
which the property was subject to the alleged wrongful trespass.” The court dismissed as
conclusory, unpersuasive and lacking in foundation the declaration of Barry Diskin,
advanced by plaintiffs in an attempt to show damages can be determined by common
proof.
         There is no question this conclusion is based on proper legal criteria. In arguing to
the contrary, plaintiffs rely on the oft-stated rule that “if the defendant’s liability can be
determined by facts common to all members of the class, a class will be certified even if
the members must individually prove their damages. [Fn. omitted].” (Hicks v. Kaufman
& Broad Home Corp. (2001) 89 Cal.App.4th 908, 916.) That rule does not apply here
because its necessary condition, commonality of facts showing liability, has not been
met.

trial court. The trial court stated the ruling was irrelevant to its decision to deny class
certification.

                                               8
       The trial court’s conclusion is also supported by substantial evidence. PG&E
presented evidence that damages would have to be assessed by property-specific
appraisals, because no two properties are identical and property values are affected by
numerous specific factors. Plaintiffs presented the declaration of Barry Diskin, which the
trial court rejected for the reasons stated above. Plaintiffs simply complain about the trial
court’s determination of conflicting evidence. They cannot overcome the substantial
evidence rule.3
       We agree with the trial court’s conclusion: “common questions do not
predominate over individual questions with respect to both liability and damages. Since
plaintiffs have not met their burden of demonstrating predominance, they have failed to
demonstrate a well-defined community of interest among class members. . . . [T]he
predominance of individual questions is determinative and constitutes an independently
sufficient basis on which this [c]ourt denies class certification.”
       The evidence properly before the trial court clearly shows that individual
questions of proof predominate. Thus, the trial court did not abuse its discretion by
denying class certification. In light of this conclusion, we need not discuss the trial
court’s final conclusion that class adjudication is not the superior method for the
resolution of this lawsuit.




       3
           We need not discuss plaintiffs’ remaining arguments regarding damages.

                                              9
                                   III. DISPOSITION
       The order denying class certification is affirmed.




                                                  ______________________
                                                   Sepulveda, J.*


We concur:


______________________
 Margulies, Acting P.J.

______________________
 Banke, J.




* Retired Associate Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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