Case Name: Xiaotian Sun, et al. v. Csaba Mester, et al.

Case No.: 17CV305995

Revised Motion of Cross-Defendant Pacific Gas and Electric Company for Summary Judgment or, in the Alternative, Summary Adjudication of the Cross-Complaint

Factual and Procedural Background

Plaintiffs Xiaotian Sun and Wei Luo (“Plaintiffs”) are owners of real property commonly known as 15651 On Orbit Drive in Saratoga (“Sun Property”). (First Amended Complaint (“FAC”), ¶1.)

Defendants Csaba Mester and Marta Mester (“Mesters”) own real property commonly known as 15645 On Orbit Drive in Saratoga (“Mester Property”). (FAC, ¶2.)

The real properties owned by Plaintiffs and the Mesters share a common boundary. (FAC, ¶6.) The Mester Property is burdened by a public easement. (Id.) Defendant Pacific Gas & Electric Company (“PG&E”) installed an electrical pole and service lines pursuant to the public utility easement. (Id.) The Mesters acknowledge the existence of the public utility easement, but contend the electrical pole and service lines have been placed outside of the deeded easement. (Id.)

Plaintiffs’ service line connects to the electrical pole. (FAC, ¶7.) Plaintiffs want to upgrade the service to their property and need to install, among other things, a new underground conduit and small underground junction box inside the public utility easement and connect these easements to the existing electrical pole. (Id.) Despite Plaintiffs’ request, the Mesters refused to provide Plaintiffs access to the easement and claim Plaintiffs have no right to complete the service upgrade because to do so would require burdening portions of the Mester Property outside of the public utility easement. (Id.) Plaintiffs and PG&E has requested access to the Mester Property to confirm the Mesters’ assertion that the electrical pole is outside of the deeded public utility easement, but the Mesters have refused to provide access and demand the electrical pole and service lines be moved to a different location. (Id.)

On February 13, 2017, Plaintiffs commenced this action by filing a complaint.

On June 26, 2017, Plaintiffs filed the operative FAC against the Mesters and PG&E asserting causes of action for:

(1) Declaratory Relief
(2)
(3) Quiet Title to Express Easement [versus Mesters]
(4)
(5) Quiet Title to Prescriptive Easement [versus Mesters]
(6)
(7) Quiet Title to Equitable Easement [versus Mesters]
(8)
(9) Interference with Easements [versus Mesters]
(10)
(11) Acquisition of Easement by Eminent Domain [versus Mesters]
(12)

On August 2, 2017, defendant PG&E filed an answer to the FAC.

On September 11, 2017, Plaintiffs dismissed the sixth cause of action with prejudice.

On October 11, 2017, defendant Mesters filed a demurrer to the FAC. On December 7, 2017, the court overruled defendant Mesters’ demurrer to the FAC.

On January 9, 2018, the Mesters filed an answer to Plaintiffs’ FAC.

On August 8, 2018, the Mesters filed a cross-complaint against PG&E asserting causes of action for:

(1) Declaratory Relief
(2)
(3) Public Nuisance
(4)
(5) Private Nuisance
(6)

On September 10, 2018, PG&E filed an answer to the Mesters’ cross-complaint.

On December 10, 2018, PG&E filed a motion for summary judgment/ adjudication of the Mesters’ cross-complaint.

On January 11, 2019, Plaintiffs filed a motion for summary adjudication of the second, third, and fourth causes of action in their FAC.

On February 8, 2019, PG&E filed a notice of stay of proceedings due to bankruptcy.

On February 22, 2019, the Mesters made an ex-parte application for order staying the entire action. The court set the matter for hearing on March 1, 2019. On March 11, 2019, the court issued an order denying the Mesters’ motion to stay the entire action stating, “The first cause of action of the [FAC] for declaratory relief remains stayed due to the bankruptcy of [PG&E]. The second through fifth causes of action of the [FAC] are not stayed.”

On March 28, 2019, the court denied Plaintiffs’ motion for summary adjudication of the second, third, and fourth causes of action of Plaintiffs’ FAC.

On August 21, 2019, PG&E filed a revised motion for summary judgment/ adjudication of the Mesters’ cross-complaint.

I. Cross-defendant PG&E’s motion for summary judgment or, in the alternative, summary adjudication of the cross-complaint is GRANTED, in part, and DENIED, in part.
II.

A. Declaratory relief.
B.

In the Mesters’ cross-complaint, the Mesters’ first cause of action is for declaratory relief. Specifically and in relevant part, the Mesters allege,

An actual controversy has arisen and now exists between Cross-Complainants and PG&E relative to their respective rights and duties with regard to, among other things, the public utility easement burdening the MESTER Property, the location of the electrical pole and service lines, whether the electrical pole and service lines need to be moved, who if anyone, is responsible for the relocation of the electrical pole and service lines if, in fact, they do need to be moved, whether the historical existence of the electrical pole and service lines in their current location give rise to the right for them to remain in their current location, whether SUN is entitled to complete the upgrade to their electrical pole and service lines, and who is responsible for any costs and expenses associated with the foregoing. A further actual controversy has arisen between Cross-Complainants and PG&E regarding the safety issues related to the power pole and power lines, as described in paragraph 9, above.”

(Cross-Complaint, ¶11.)

In addition, the electrical pole in question has begun to list, and rather than standing straight up, it now sits at an angle, and that angle is increasing. Given the angle that electrical pole now stands, and that power lines extend from it through trees and across Cross-Complainants’ property (i.e., the MESTER Property), Cross-Complainants are concerned that it creates a fire hazard, in the event of winds, and that the change in angle is indicative of instability, and that instability could lead to the collapse of the pole and power lines, creating a fire hazard as well as danger from downed power lines. PG&E has refused to undertake necessary repair or maintenance to correct this dangerous condition.

(Cross-Complaint, ¶9.)

In moving for summary adjudication of this first cause of action, PG&E contends the Mesters cannot prevail because are not entitled to the declaratory relief they seek. In their cross-complaint, the Mesters’ prayer for relief on the first cause of action requests:

…a declaration that there is a public utility easement burdening the MESTER Property, that the existing electrical pole and service lines are not within that easement; that the existing electrical pole and service lines in their current location are burdening the MESTER Property in such a manner that a portion of the MESTER Property is unusable by Cross-Complainants; that the electrical pole and service lines are neither safe nor being adequately maintained by PG&E; that PG&E shall move the electrical pole and power lines to a safer location within the easement and maintain the power lines in an adequate manner; that if the court determines that the electrical pole should be moved, PG&E shall, among other things, install a new underground conduit and small underground junction box and connect the improvements for the benefit of SUN, as requested by SUN, and that Cross-Complainants shall have no obligation to pay for the moving the pole, its maintenance or upkeep, or the installation of the improvements requested by SUN; or alternatively, that PG&E shall adequately repair and maintain the electrical pole and service lines in their current location, and that no improvements as requested by SUN shall be made.

PG&E concedes the electrical pole and service lines, as they currently exist, do not lie completely within the public utility easement. The declaratory relief sought by the Mesters is multi-faceted. At least with regard to the location of the electrical pole and service lines, the declaratory relief is sought in the alternative. The Mesters seek to have PG&E move the electrical pole and service lines completely within the PUE and allow the Plaintiffs the improvements they seek at no cost to the Mesters or, alternatively, allow the electrical pole and service lines to remain in their current location without any further improvements.

PG&E contends the declaratory relief sought by the Mesters regarding the location of the electrical pole and service lines is unavailable because PG&E has acquired a prescriptive easement to the electrical pole and service lines as they currently exist. In opposition, the Mesters argue summary adjudication of the declaratory relief is inappropriate because, irrespective of whether PG&E has acquired prescriptive rights to the current location of the electrical pole and service lines, the controversy to be determined in the first cause of action go beyond the current location of the electrical pole and service lines and encompass the right to make improvements to the electrical pole and service lines as requested by the Plaintiffs. The Mesters contend this would amount to improper partial summary adjudication. Code of Civil Procedure section 437c, subdivision (f) does not authorize partial summary adjudication. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action. (Code Civ. Proc., §437c, subd. (f)(1).) “The purpose of the enactment of Code of Civil Procedure section 437c, subdivision (f) was to stop the practice of piecemeal adjudication of facts that did not completely dispose of a substantive area.” (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.)

PG&E apparently anticipated this argument by the Mesters. In a footnote to their points and authorities, PG&E notes, “The Mesters also discuss issues that relate to their dispute with the Suns, who wish to upgrade their electric service which may require installation of PG&E additional equipment. This dispute does not involve PG&E’s rights and obligations vis a vis the Mesters and is not properly included in the Cross-Complaint. To the extent the Suns’ upgrade requires additional land rights or permissions from the Mesters it is the responsibility of the Suns to obtain them directly from the Mesters.”

The court does not agree with PG&E’s attempt to limit or frame differently the issues asserted in the Mesters’ cross-complaint. Admittedly, the electrical pole and service line are owned by PG&E. PG&E is claiming prescriptive rights with regard to the electrical pole and service line. Plaintiffs may be third party beneficiaries of any improvements to the PG&E-owned electrical pole and service lines. However, the issues raised by the cross-complaint include the scope of PG&E’s prescriptive rights and, more specifically, whether PG&E has the right to make the improvements requested by Plaintiffs. PG&E does not completely dispose of this cause of action simply by demonstrating a prescriptive right to the current location of the electrical pole and service line.

Accordingly, cross-defendant PG&E’s motion for summary judgment is DENIED. Cross-defendant PG&E’s alternative motion for summary adjudication of the first cause of action of the cross-complaint is DENIED.

C. Nuisance.
D.

PG&E seeks summary adjudication of the second and third causes of action for public nuisance and private nuisance, respectively, are barred here by Public Utilities Code sections 1759 and 2106. Public Utilities Code section 2106 states, in relevant part:

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. If the court finds that the act or omission was wilful, it may, in addition to the actual damages, award exemplary damages. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.

PG&E proffers evidence that the Mesters admit the PG&E Pole has not been harmful to their health, and they do not seek any damages from PG&E. The Mesters are only concerned that “the pole is in danger of falling or collapsing and thereby causing property damage or possibly starting a fire.” Since the Mesters have not suffered any actual “loss, damages, or injury,” PG&E contends the Mesters may not assert these two claims for nuisance.

Public Utilities Code section 1759, subdivision (a) states, “No 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.”

PG&E contends the relief sought by the Mesters in their second and third causes of action is, essentially, injunctive relief regarding the maintenance and operation of the electrical pole and service line which are governed by the California Public Utilities Commission (“CPUC”) and the rules promulgated by the CPUC and this court has no jurisdiction to issue any injunction.

Looking to Public Utilities Code section 2106 first, the Mesters cite to various decisions in opposition. For instance, the Mesters cite Vila v. Tahoe Southside Water Utility (1965) 233 Cal.App.2d 469, 477 (Vila), but Vila confirms, “section 2106 expressly grant[s] jurisdiction to the courts to award both compensatory and (in a proper case) exemplary damages.” Here, the Mesters do not seek to recover for any loss, damage, or injury in connection with their second and third causes of action. Similarly, the Mesters’ reliance on Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256 (Hartwell) is distinguishable because the plaintiffs sought actual damages. While some portion of plaintiffs’ damages claims and claims for injunctive relief were preempted, “[P]laintiffs’ damage claims alleging water contamination that violated and exceeded federal and state drinking water standards are authorized under section 2106.”

In short, the Mesters do not overcome PG&E’s argument that Public Utilities Code section 2106 requires a claim for “loss, damages, or injury” and the Mesters do not make a claim for any “loss, damages, or injury” in their second and third causes of action. The court does not even reach the issue of whether the injunctive relief requested by the Mesters violates Public Utilities Code section 1759. Accordingly, cross-defendant PG&E’s alternative motion for summary adjudication of the second and third causes of action of the cross-complaint is GRANTED.