Filed 1/20/15 Guerra v. San Diego Gas & Electric CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



MARC GUERRA,                                                        D065265

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2012-00103728-CU-BT-CTL)
SAN DIEGO GAS & ELECTRIC
COMPANY,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of San Diego County, Timothy

B. Taylor, Judge. Reversed.

         Blood Hurst & O'Reardon, Timothy G. Blood, Leslie E. Hurst; Law Office of John

W. Davis and John W. Davis for Plaintiff and Appellant.

         Perez & Wilson, Michael J. Perez and Jeffrey A. Feasby for Defendant and

Respondent.

         A tariff rule promulgated by the California Public Utilities Commission (PUC)

provides San Diego Gas & Electric Company (SDG&E) can gain access to SDG&E's

facilities located on a customer's private property and, when the customer has elected to
place SDG&E's facilities behind locked doors, the rule grants SDG&E the discretion to

select the locking mechanism that must be installed by the customer to enable SDG&E's

personnel to obtain access to those facilities. SDG&E selected the Schlage VTQP Quad

Key Section system (Keyways) as the device its customers must install. Keyways is a

lock and key system, and SDG&E creates and distributes the keys (and also authorizes

other vendors to distribute keys), any one of which can open a wide range of the doors

secured with Keyways. SDG&E does not track or secure the keys distributed by itself or

others.

          A substantial number of property crimes during 2011 and 2012 were perpetrated

by criminals who used keys for Keyways to obtain access to otherwise secure buildings,

including burglaries at a condominium building known as "Aperture," where plaintiff

Marc Guerra resides. In 2012, Guerra filed this putative class action against SDG&E

alleging a claim under California's Unfair Competition Law (Bus. & Prof. Code, § 17200

et seq. (UCL)), which asserted, in part, that SDG&E engaged in unfair and unlawful

business practices because it distributed keys to the locking mechanism selected by

SDG&E without imposing reasonable controls to safeguard or track the keys, and Guerra

and similarly situated persons were injured by SDG&E's conduct because persons

obtained and used these keys to obtain entry to private property to commit burglaries. On

the eve of Guerra's class certification motion, SDG&E sought judgment on the pleadings

asserting, among other grounds, that the trial court did not have jurisdiction under Public




                                             2
Utilities Code1 section 1759. The trial court agreed and granted the motion, and Guerra

timely appealed.

                                                  I

                      FACTUAL AND PROCEDURAL BACKGROUND

           A. The Tariff Rule

           SDG&E is a public utility the operations of which are governed by various tariff

rules adopted by the PUC, including SDG&E Rule 16 (Rule 16). Rule 16 governs

service extensions and covers numerous subjects, including granting SDG&E access to

the customer's premises. It specifies SDG&E "shall at all times have the right to enter

and leave [the customer's] Premises for any purpose connected with the furnishing of

electric service . . . and the exercise of any and all rights secured to it by law, or under

utility's tariff schedules. These rights include, but are not limited to . . . [¶] . . . [t]he use

of a utility-approved locking device, if Applicant desires to prevent unauthorized access

to utility's facilities . . . ." (Rule 16(A)(11)(a).) Under this rule, if a property owner

chooses to locate SDG&E facilities behind a locked gate or door, the property owner

must pay for and install the locking device approved by SDG&E to ensure SDG&E can

access its facilities. SDG&E has chosen Keyways as the lock system customers must

install.




1          All statutory references are to the Public Utilities Code unless otherwise specified.

                                                 3
       B. The Alleged Defalcations

       Guerra resides at the Aperture condominium complex in San Diego, California,

which has Keyways. Burglars entered the Aperture complex on seven occasions in the

22 months preceding Guerra's complaint and were able to obtain access to the common

areas by using a key to operate Keyways. Police estimate that a substantial portion of the

burglaries occurring in San Diego's central division were perpetrated by criminals able to

obtain access to buildings using SDG&E's Keyways. SDG&E told police it has no way

of tracking the keys it issues and therefore could not assist police in investigating.

       During discovery, SDG&E confirmed it does not know how many keys it has

distributed, or who has the keys it issued. It does not require employees to report when a

key has been lost or stolen, and will issue multiple keys to an individual employee on

request. SDG&E also confirmed it permits numerous non-SDG&E vendors to obtain

copies of the keys, thereby providing these vendors with access to the buildings; and

although SDG&E is entitled to audit for the inventory and security of those keys, it has

never done so. SDG&E does not know how many keys have been distributed to vendors

and does not require vendors to report lost or stolen keys.

       C. The Lawsuit

       Guerra filed this putative class action against SDG&E alleging a claim under the

UCL, asserting SDG&E engaged in unfair and unlawful business practices because it

distributed keys to the locking mechanism it selected without instituting reasonable

policies and procedures to track and safeguard the keys and access to Keyways, and

asserting there were reasonable alternatives to provide SDG&E secure access for its

                                              4
legitimate business purposes. Approximately one year later, Guerra filed his class

certification motion.

       In reply, SDG&E sought judgment on the pleadings, asserting (1) the trial court

did not have jurisdiction under section 1759, (2) the court should abstain from exercising

jurisdiction to avoid usurping the PUC's authority, and (3) SDG&E can have no liability

for the injuries to Guerra and other similarly situated people because of intervening

criminal conduct. SDG&E's argument under section 1759 asserted Guerra's UCL claim

challenged SDG&E's choice of Keyways and that, because Rule 16(A)(11)(a) granted

SDG&E the discretion to select the type of locking device its customers must use, an

injunction against use of Keyways would interfere with the PUC's exercise of its

regulatory authority (embodied in Rule 16(A)(11)) precluded pursuant to section 1759

under the test set forth in San Diego Gas & Electric Co. v. Superior Court (Covalt)

(1996) 13 Cal.4th 893 (Covalt). Guerra opposed the motion for judgment on the

pleadings, arguing the action did not seek to enjoin SDG&E from electing to use

Keyways, but instead sought injunctive relief requiring SDG&E to take reasonable steps

to exercise control over the keys it distributed for the device it selected as the locking

mechanism.

       The trial court agreed with SDG&E that section 1759 deprived the court of

jurisdiction over a complaint challenging its choice, use and monitoring of Keyways,

reasoning that the monitoring failures alleged by Guerra were part of the choice made by

SDG&E (which choice was conferred on SDG&E by the PUC's tariff Rule 16(A)) to use



                                              5
Keyways. The court entered judgment on the pleadings in favor of SDG&E, and Guerra

timely appealed.

                                               II

                                   LEGAL FRAMEWORK

          The Public Utilities Act vests in the PUC the "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 PUC 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.) PUC action

is subject to judicial review, and section 1759 "prescribes a method of judicial review that

is narrow in both 'manner and scope.' " (Id. at p. 915.) Among other provisions, section

1759, subdivision (a), 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."

          Although section 1759 proscribes trial courts from reviewing commission rules

and decisions, the Legislature has provided a private right of action against utilities for

unlawful activities and conduct that may be pursued in the trial courts. 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

                                               6
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 . . . ." The tension between

sections 1759 and 2106 has led numerous courts to recognize that "[i]t has never been the

rule in California that the commission has exclusive jurisdiction over any and all matters

having any reference to the regulation and supervision of public utilities." (Vila v. Tahoe

Southside Water Utility (1965) 233 Cal.App.2d 469, 477 [court has jurisdiction over

complaint alleging utility wrongfully refused to provide water service that sought

injunction to compel utility to provide water at prescribed rates and for damages]; accord,

Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1571 [PUC does not have

jurisdiction "over all matters that simply have some bearing upon regulated utilities"].)

Superior courts have concurrent jurisdiction to resolve a dispute between a private party

and a utility, and to award injunctive relief where appropriate (Truck Owners etc., Inc. v.

Superior Court (1924) 194 Cal. 146, 157-158; Vila, at p. 477) where the injunctive relief

would act "in aid of, rather than in derogation of, the PUC's jurisdiction." (Hartwell

Corp. v. Superior Court (2002) 27 Cal.4th 256, 275.)

       Recognizing the tension between section 1759's limitations and section 2106's

right of action, our Supreme Court "has held section 2106 '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.' " (Koponen v. Pacific Gas &

Electric Co. (2008) 165 Cal.App.4th 345, 351.) In Covalt, the Supreme Court held

"[u]nder the Waters [v. Pacific Telephone Co. (1974) 12 Cal.3d 1] rule, . . . an action for

                                             7
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." (Covalt, supra, 13 Cal.4th at p. 918,

fn. omitted.) Covalt 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." (Koponen, at p. 351.)

                                               III

                                          ANALYSIS

       A. The Trial Court Erred in Dismissing the Complaint under Section 1759

       Our analysis begins with the nature of the action brought and relief sought by

plaintiff because section 1759 "is not intended to, and does not, immunize or insulate a

public utility from any and all civil actions brought in superior court" (People ex rel.

Orloff v. Pacific Bell (2003) 31 Cal.4th 1132, 1144), but instead deprives a superior court

of jurisdiction to entertain an action only under the circumstances set forth in Covalt.

Here, plaintiff's action alleged SDG&E engaged in unfair and unlawful business practices

because it distributed keys to the locking mechanism selected by SDG&E without

instituting reasonable policies and procedures to track and safeguard the keys and access

                                                8
to Keyways even though there were reasonable alternatives that would provide secure

access to SDG&E for its legitimate business purposes. Guerra sought to enjoin SDG&E

from continuing to engage in the unfair and unlawful business practices.2

        The first step under Covalt to whether an action is barred by section 1759 is

whether the PUC has the authority to adopt a regulatory policy governing service

extensions and access to property. SDG&E contends, and Guerra does not dispute, the

PUC has the authority to adopt rules governing service extensions, including rules that

require customers seeking service to enable SDG&E to have access to the customer's

property to maintain the facilities. The parties do not dispute that Rule 16, which has

"the force and effect of law" (Dollar-A-Day Rent-A-Car Systems, Inc. v. Pacific Tel. &

Tel. Co. (1972) 26 Cal.App.3d 454, 457), was within the ambit of the power conferred on

the PUC to review "the rules, practices, equipment, appliances, facilities, or service of

any public utility" and to "prescribe rules for the performance of any service or the

furnishing of any commodity of the character furnished or supplied by any public

utility . . . ." (§ 761.)




2       Although the complaint was amenable to the interpretation that Guerra also sought
to compel SDG&E to select a different locking mechanism other than Keyways, Guerra
(in his response to SDG&E's motion for judgment on the pleadings) specifically
eschewed any claim that his action sought anything other than to compel SDG&E to
institute reasonable policies and procedures to track and safeguard the keys and access to
Keyways. More importantly, because the court declined Guerra's request for leave to
amend, we must presume the court ruled that section 1759 barred Guerra's action even
had he amended the action to clarify that it sought only to compel SDG&E to institute
reasonable policies and procedures to track and safeguard the keys and access to
Keyways.

                                              9
       The remaining two questions under Covalt to decide whether the action is barred

by section 1759, which are somewhat intertwined, are whether the PUC exercised its

authority by actually adopting a policy governing the conduct of the utility that the

present action challenges as unlawful, and whether a superior court judgment granting

Guerra the requested relief would somehow hinder or interfere with the PUC's exercise of

that regulatory authority. We conclude both of those questions must be answered in the

negative.

       The PUC has adopted a tariff rule to guarantee SDG&E has access to the owner's

premises, and implemented that guarantee in part by permitting SDG&E to designate

which type of locking device an applicant must install. However, the PUC imposed no

regulatory requirements or standards governing how SDG&E is to safeguard the keys it

distributes to operate the locks. SDG&E argues the fact Rule 16 is silent on how (or even

whether) a utility is required to safeguard the keys is irrelevant to the analysis of the

preclusive impact of section 1759 on Guerra's action, because SDG&E asserts cases like

Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th 225 teach that the adoption

of rules touching on a subject matter must be read broadly as encompassing all related

subjects, and therefore a rule permitting SDG&E to select Keyways must be read broadly

to encompass all aspects of SDG&E's administration of Keyways. In Sarale, the plaintiff

landowners brought an action against the utility alleging the utility engaged in excessive

trimming of commercially productive walnut trees located under the utility's power lines,

and the trial court sustained the utility's demurrers without leave to amend and dismissed

the complaints under section 1759. (Sarale, at p. 230.) A divided court concluded that

                                              10
because the PUC had undertaken to study tree clearances around overhead power lines,

and had thereafter adopted statewide standards for minimum tree clearances while also

recognizing that " '[v]egetation management practices may make it advantageous to

obtain greater clearances than those listed' " (id. at p. 239), the second part of the Covalt

test had been satisfied because "it is quite apparent that the commission has exercised its

jurisdiction to regulate tree trimming around power lines." (Sarale, at p. 239.) The

Sarale majority concluded that, for purposes of evaluating whether a lawsuit seeking to

challenge tree trimming beyond the minimum clearances was precluded by section 1759,

the second part of the Covalt test had been satisfied, reasoning "it does not matter

whether we characterize the commission's actions broadly, as addressing 'the

management of vegetation near power lines,' or narrowly, as addressing 'minimum [tree]

trimming clearances.' What matters is that the commission has exercised its authority to

adopt a regulatory policy relating to tree trimming around power lines—regardless of

how that policy may be characterized." (Ibid.)

       SDG&E argues that, like in Sarale, the PUC has exercised its authority to adopt a

regulatory policy regarding a utility's access to its facilities, and it does not matter

whether the policy is characterized narrowly (as addressing only SDG&E's selection of

the locking device) or more broadly (as encompassing the procedures for providing

access to those locking devices). However, even assuming we agree with the Sarale

court's analysis (but see Mata v. Pacific Gas & Electric Co. (2014) 224 Cal.App.4th 309,

319 [noting a "strong dissent" questioned how allowing the lawsuits to go forward would

interfere with PUC's regulatory authority since neither plaintiff challenged any conduct

                                               11
falling within the minimum clearances established by the PUC]), Sarale is of little

assistance here because it considered a policy that had been extensively visited and

revisited by the PUC over the decades (see Sarale, 189 Cal.App.4th at p. 242 [noting the

"record in this case indicates that clearances for vegetation management surrounding

power lines were revised by the commission in 1948, 1962, 1964, 1966, 1967, 1968,

1980, 1988, 1990, 1992, 1996, 1997, and 2005"], and hence represented the type of

" 'broad and continuing supervisory or regulatory program' " (Hartwell Corp. v. Superior

Court, supra, 27 Cal.4th at p. 276) Covalt determined would be protected from judicial

interference. In contrast, Rule 16 does not represent a "broad and continuing supervisory

or regulatory program" regulating a utility's ability to obtain access to premises, much

less concerning itself with the administrative details of how the utility should protect its

authorized access against being misused by unauthorized persons, but instead is largely

concerned with the terms and conditions under which a utility extends service to a home

or business. Rule 16 does include a subsection guaranteeing access to the customer's

premises to permit the utility to provide a range of services, but the extent of that policy

is the specification that the utility's access shall include (1) access for the utility's vehicles

and equipment, (2) freedom from unrestrained animals, (3) use of a utility-approved

locking device under certain circumstances, and (4) the right of access to the premises to

remove the utility's equipment after termination of service. (Rule 16, subds. (A)(11)(a)-

(d).)

        We agree with Guerra that Rule 16's brief advertence to use of a utility-approved

locking device is not the type of broad and continuing supervisory or regulatory program

                                               12
with which the second part of the Covalt test is concerned. As Covalt explained, "[w]hen

the bar raised against a private damages action has been a ruling of the commission on a

single matter such as its approval of a tariff or a merger, the courts have tended to hold

that the action would not 'hinder' a 'policy' of the commission within the meaning of

Waters and hence may proceed. But when the relief sought would have interfered with a

broad and continuing supervisory or regulatory program of the commission, the courts

have found such a hindrance and barred the action under section 1759." (Covalt, supra,

13 Cal.4th at pp. 918-919, italics added.) Covalt illustrated the distinction by citing two

cases in which the second part of its test was not satisfied (Id. at pp. 919-920), and

contrasting those cases with a pair of appellate court decisions in which the second part

of its test was satisfied. (Id. at pp. 919-923.) Among the former cases was Cellular Plus,

Inc. v. Superior Court (1993) 14 Cal.App.4th 1224 (Cellular Plus), in which a

consumer's action alleging price fixing by two cellular telephone service companies was

permitted to proceed even though the PUC had granted both defendant companies

certificates of convenience and necessity authorizing them to operate and had approved

the rates they proposed to charge. The defendant companies' demurrer on the ground that

the commission has sole jurisdiction over rates charged was sustained, but the Cellular

Plus court concluded the action could proceed, because the PUC had determined only

that the proposed rates were reasonable, and the plaintiff's price-fixing claim did not

challenge the economic reasonableness of the prices but only whether the prices were in

fact artificially maintained. (Cellular Plus, at p. 1246.) The Cellular Plus court then

concluded the action would not hinder or frustrate the PUC's supervisory or regulatory

                                             13
policies, because "[t]he only apparent policy of the PUC that could be affected is its

regulation of rates charged by cellular telephone service providers. However, [plaintiff]

does not dispute that the PUC has jurisdiction over rates, nor does it seek any relief

requiring the PUC to change any rates it has approved." (Ibid.)

       In contrast, Covalt noted cases like Brian T. v. Pacific Bell (1989) 210 Cal.App.3d

894, in which the superior court action would have interfered with a broad and continuing

policy of the commission and hence was barred by section 1759. In Brian T., the PUC

had addressed a problem arising because telephone utilities offered "information access

services," which potentially could have been used to disseminate sexually explicit

material to minors, and the PUC considered how to restrict access to adults only. The

Federal Communications Commission (FCC) had considered three methods of achieving

such a restriction (blocking devices on the customer's premises; blocking systems at the

utility's central station; and "customer access codes" issued on request to adult

subscribers) and ultimately adopted the third of these methods. However, the PUC

investigated and adopted an interim decision approving the central-station method of

blocking sexually explicit messages, and (after exhaustive hearings) reaffirmed its

decision in favor of central-station blocking. (Covalt, supra, 13 Cal.4th at p. 920.) In a

lawsuit by a minor's parents, who alleged the minor had listened to sexually explicit

messages and then engaged in unlawful sexual contacts with another minor, the parents

sought damages and a preliminary injunction to compel the phone company to make

available to its customers screening or blocking devices. The Brian T. court upheld the

trial court's order dismissing the action for lack of jurisdiction, reasoning the requested

                                             14
injunctive relief would in effect call for PUC action to modify its previous decisions on

how to restrict access, and such interference with a PUC policy was prohibited by section

1759. (See Brian T., at pp. 900-901.)

       Here, as in Cellular Plus, the bar raised against Guerra's action is a PUC approval

of a single tariff rule, which is limited to allowing the utility to select the locking device

that must be installed, not an explicit policy adopted after exhaustive studies as in

Brian T. Here, as in Cellular Plus but unlike Brian T., the relief sought by Guerra would

neither require the PUC to change the tariff rule nor preclude SDG&E from selecting the

locking device, but instead would only require that SDG&E adopt measures to guard

against unauthorized use of the keys to that locking device. In Cundiff v. GTE California

Inc. (2002) 101 Cal.App.4th 1395, the court applied Covalt to an analogous set of

circumstances and found the action was not barred. In Cundiff, the plaintiff sued a phone

company alleging the monthly bills sent to customers were false and misleading because

the bills listed as "equipment rental" a monthly charge for renting the phone unit. (Id. at

p. 1402.) The trial court sustained a demurrer without leave to amend on the ground that

section 1759 gave the PUC exclusive jurisdiction. The Cundiff court reversed and held

the suit was not barred by section 1759, reasoning that even if "the amount of money

defendants charged each month as rent for telephones was approved by the commission,

we do not perceive the thrust of plaintiffs' complaint to be a challenge to that amount.

Nor do we perceive this as a suit challenging the commission's decision to allow

defendants to rent telephones to their customers. Rather, plaintiffs are challenging the

manner in which defendants billed them for rental of telephones, specifically, the alleged

                                              15
lack of information given to plaintiffs about the rental charge made each month by

defendants." (Id. at p. 1406.) Similarly, Guerra is not challenging the PUC's decision to

allow SDG&E to select which locking device to install, but is instead challenging only

the manner in which SDG&E chooses to administer the system, and the manner in which

SDG&E chooses to safeguard the keys.

       SDG&E argues the relief sought by Guerra would have multiple collateral impacts

hindering or interfering with the PUC's exercise of authority, within the meaning Covalt's

third criteria, because it would create a subcategory of rate-payers entitled to enhanced

protections (e.g. persons living in residences where SDG&E facilities share a keyed

entrance to common areas) without defining a uniform standard of care applicable

throughout the state, and the costs of the enhanced security measures could be borne by

all ratepayers rather than only those ratepayers benefitted by the enhanced security.

Because only the PUC is empowered to establish rules and fix rates for SDG&E

customers, the relief sought would hinder or interfere with the PUC's exercise of

authority. However, SDG&E cites no authority suggesting Covalt's tripartite test is

disjunctive, and therefore the collateral impacts have no relevance where (as here) the

second part of Covalt is not satisfied. Moreover, SDG&E's claim a ruling in Guerra's

favor would impact rates, thereby transgressing on the PUC's exclusive authority over

rates, appears contrary to established law. In an analogous context, a court rejected an

argument that a court could not invalidate the early termination fees (ETF's) charged by

cell phone providers because rate regulation of those providers was preempted, stating

" '[a] judicial act constitutes rate regulation only if its principal purpose and direct effect

                                               16
are to control rates' " (Cellphone Termination Fee Cases (2011) 193 Cal.App.4th 298,

320), and concluding "[i]nvalidation of the ETF's under California's consumer protection

laws will have only an indirect and incidental effect on Sprint's rates and, therefore, is not

preempted . . . ." (Id. at p. 321.) We conclude the limited relief sought by Guerra is not

barred by section 1759 as construed in Covalt, and therefore the trial court erred when it

dismissed Guerra's complaint under section 1759.

       B. SDG&E's Alternative Arguments to Support the Judgment are Unpersuasive

       In the proceedings below, SDG&E also asserted the court should grant judgment

on the pleadings based on judicial abstention and because any injury suffered by Guerra

resulted from intervening criminal conduct. SDG&E resurrects those arguments on

appeal.3

       The Abstention Claim

       SDG&E's abstention argument asserts that, when considering relief under the

UCL, courts have the discretion to abstain from employing the equitable remedies

available under the UCL, namely injunctions and restitution, and "[w]here a UCL action

would drag a court of equity into an area of complex economic policy, equitable

abstention is appropriate. In such cases, it is primarily a legislative and not a judicial



3       SDG&E also argues, apparently for the first time on appeal, that the motion for
judgment on the pleadings was properly granted because the complaint failed to state a
claim for relief under the UCL. We ordinarily decline to consider arguments not raised at
trial (see generally Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1129), and we
decline to do so here because the failure to raise the argument below at a minimum
deprived Guerra of the opportunity to propose amendments that may have cured any
purported defect.

                                              17
function to determine the best economic policy." (Desert Healthcare Dist. v. PacifiCare

FHP, Inc. (2001) 94 Cal.App.4th 781, 795.) SDG&E cites Alvarado v. Selma

Convalescent Hospital (2007) 153 Cal.App.4th 1292 in support of its argument in favor

of abstention. Alvarado involved a class action lawsuit, brought under the UCL, seeking

restitution and injunctive relief to require owners and operators of skilled nursing and

intermediate care facilities to comply with certain minimum nursing hour requirements,

and the trial court sustained a demurrer to the complaint based on abstention. The

appellate court affirmed because "[a]djudicating this class action controversy would

require the trial court to assume general regulatory powers over the health care industry

through the guise of enforcing the UCL, a task for which the courts are not well-

equipped." (Id. at pp. 1303-1304.) SDG&E asserts that, because Guerra's action would

require a court "to assume the function of the PUC and/or would interfere with the PUC's

regulatory authority" by imposing security requirements for guarding access to Keyways,

"[j]udicial abstention is appropriate [because] granting the requested relief would require

a trial court to assume the functions of an administrative agency, or to interfere with the

functions of an administrative agency." (Id. at p. 1298.)

       SDG&E's argument appears to be a repackaging of its argument under Covalt and

our reasons for rejecting SDG&E's Covalt argument apply with equal force to its

abstention claim. Moreover, the decision in Alvarado applied abstention to a milieu

bearing little resemblance to the present case. In Alvarado, the lawsuit sought an

injunction requiring the owners and operators of nursing facilities to comply with

statutory requirements for nursing hours. However, the statute contemplated the

                                             18
Department of Health Care Services would be charged with adopting regulations setting

forth the minimum number of nursing hours per patient required at these facilities

(Alvarado v. Selma Convalescent Hospital, supra, 153 Cal.App.4th at p. 1303), as well as

determining compliance with those regulations by considering which professionals' time

would be counted and whether exceptions were applicable. (Id. at pp. 1304-1306.) The

Alvarado court, noting "[t]he DHCS has the power, expertise and statutory mandate to

regulate and enforce section 1275.6" (id. at p. 1306), concluded the trial court did not

abuse its discretion by applying the abstention doctrine because it involved "a task better

accomplished by an administrative agency than by trial courts." (Ibid.)

       The present case does not involve enforcing compliance with a complex statutory

scheme, and does not implicate a legislative scheme that contemplated an administrative

agency would promulgate implementing regulations and undertake enforcement tasks

peculiarly suited to the expertise of the administrative agency. Instead, Guerra's UCL

claim alleged SDG&E violated the requirement, set forth in section 451, that SDG&E

"furnish and maintain such adequate . . . and reasonable service, instrumentalities,

equipment, and facilities . . . as are necessary to promote the safety . . . of its

patrons . . . ." The doctrine of judicial abstention does not prevent courts from

adjudicating a claim under the UCL evaluating whether a defendant's conduct violates a

statutory command, and to issue injunctive relief requiring compliance with those

obligations (see Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th

471, 500 ["courts routinely are called upon to decide whether an alleged business practice



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is made unlawful by an underlying statute"]), even though an administrative agency could

have parallel jurisdiction over the dispute. (Id. at pp. 500-502.)

       The Intervening Criminal Conduct Claim

       SDG&E also argues the claim raised in Guerra's complaint is barred because of

intervening criminal conduct, and therefore the motion for judgment on the pleadings was

properly granted. The harm suffered by Guerra was the direct result of third persons

committing crimes. " 'An intervening force is one which actively operates in producing

harm to another after the actor's negligent act or omission has been committed.'

[Citation.] Whether it prevents an actor's antecedent negligence from being a legal cause

of harm to another is determined by other rules [citation], chiefly those governing the

related concept of superseding cause. [¶] 'A superseding cause is an act of a third person

or other force which by its intervention prevents the actor from being liable for harm to

another which his antecedent negligence is a substantial factor in bringing about.'

[Citation.] If the cause is superseding, it relieves the actor from liability whether or not

that person's negligence was a substantial factor in bringing about the harm." (Brewer v.

Teano (1995) 40 Cal.App.4th 1024, 1030-1031.)

       SDG&E's reliance on this doctrine is unpersuasive, for two reasons. First, "[i]t is

. . . clear that intervening criminal conduct cannot absolve the defendant of liability

where as here the plaintiff alleges that defendants maintained the property in such a way

so as to increase the risk of criminal activity." (Peterson v. San Francisco Community

College Dist. (1984) 36 Cal.3d 799, 812; accord, Kwaitkowski v. Superior Trading Co.

(1981) 123 Cal.App.3d 324, 333 [rejecting intervening criminal conduct as superseding

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cause where alleged negligence was inadequate lock, noting "a properly functioning front

door lock is a vital first line of defense"].) Guerra's claim here is that SDG&E's failure to

safeguard the keys was the precise conduct increasing the risk of criminal conduct.

Second, SDG&E cites no authority suggesting the intervening criminal conduct doctrine

can be applied at the pleading stage, and analogous law appears to be to the contrary.

(See Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 18-19 [third party conduct may be

viewed as a superseding cause "when it is so highly extraordinary as to be unforeseeable"

but "foreseeability is a question for the jury unless undisputed facts leave no room for a

reasonable difference of opinion. [Citations.] Thus, the issue of superseding cause is

generally one of fact."].)

       C. Conclusion

       We conclude the trial court erred in granting SDG&E's motion for judgment on

the pleadings without leave to amend.

                                      DISPOSITION

       The judgment is reversed. Guerra is entitled to costs on appeal.




                                                                            McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


IRION, J.


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