BY THE COURT:
It is ordered that the opinion filed herein on August 31, 2016, be modified as follows:
At the end of the Disposition, the following is added for clarification: "Let a peremptory writ of mandate issue directing respondent superior court to set aside and vacate its February 9, 2016, order overruling petitioner's demurrer to real party in interest's claim under the Public Records Act, and to thereafter enter a new order sustaining the demurrer without leave to amend. The previously issued stay shall dissolve upon issuance of the remittitur. (Cal. Rules of Court, rules 8.272(b)-(d), 8.490(d).)"
This modification does not effect a change in the judgment.
MILLER, J.
This writ petition raises the narrow question whether a petition to compel the California Public Utilities Commission (CPUC) to produce documents under the Public Records Act (PRA) can properly be filed in superior court, or whether Public Utilities Code section 1759 (section 1759) bars the superior court from exercising jurisdiction over such a lawsuit. We conclude the latter, and will issue a writ of mandate commanding the superior court to set aside and vacate its order overruling a demurrer on this ground and to enter an order sustaining the demurrer without leave to amend.
Real Party in Interest Michael Aguirre (Aguirre) filed a Petition for Writ of Mandamus and Complaint for Injunctive and Declaratory Relief in San Francisco Superior Court against the CPUC for failing to comply with the PRA, Government Code sections 6250-6276.48 (Complaint). The superior court summarized the allegations in the Complaint, "The San Onofre Nuclear Generating Station was closed after it leaked radiation in 2012. The [CPUC] regulated the plant. Southern California Edison (SCE) and San Diego Gas and Electric Company (SDGE) owned the plant. The costs of the shutdown and loss due to the shutdown exceeded $4 billion. The CPUC approved SCE assigning $3.3 billion of these costs to utility ratepayers. This agreement was reached in a hotel room in Warsaw, Poland, at an ex parte meeting between former CPUC President Michael Peevey (`Peevey') and former SCE executive Stephen Pickett (`Pickett'). The agreement was outlined on hotel stationary [sic]. The CPUC adopted the agreement, stopped investigating the plant's closure and offered $25 million to fund environmental research at the University of California." Aguirre made PRA requests seeking the production of emails and other documents related to the CPUC's investigation of the San Onofre Nuclear Generating Station shutdown and the settlement and meetings, as described above. Aguirre alleges, among other things, that the CPUC refused to produce records pursuant to certain PRA requests, including emails and writings of Peevey and current CPUC President Michael Picker "regarding the backroom plan to kill any CPUC investigation into who and what caused the unlicensed steam generators to be deployed at San Onofre and who permitted Edison to unlawfully charge Edison customers for them."
The CPUC demurred on multiple grounds, including that under Public Utilities Code section 1759 the superior court has no subject matter jurisdiction over this matter, and that Aguirre had failed to exhaust his administrative remedies before filing the lawsuit. The superior court held multiple hearings on the demurrer, and permitted a second round of briefing. Although the CPUC steadfastly asserted that the superior court had no jurisdiction, it acceded to Aguirre's request for a continuance for the parties to meet and confer.
Eventually the superior court overruled the CPUC's demurrer on these grounds, and the CPUC filed a petition for an extraordinary writ directing the trial court to vacate its order and sustain the demurrer.
In reviewing a demurrer, we assume the truth of all properly pleaded and judicially noticeable material facts within the complaint, but not "`"contentions, deductions or conclusions of fact or law."'" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Whether the superior court has jurisdiction over this action against the CPUC is a question of law which we review de novo. (Disenhouse v. Peevey (2014) 226 Cal.App.4th 1096, 1102 (Disenhouse).)
The origins and broad authority of the CPUC are well known and have been described by our Supreme Court: "The [CPUC] 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, establish rules, hold various types of hearings, award reparation, and establish its own procedures. (Id., §§ 2, 4, 6.)" (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 905.)
In PegaStaff I, supra, 236 Cal.App.4th 374, we recently described the limitations on jurisdiction in cases where the CPUC is a party. "[P]ursuant to its plenary authority under article XII, section 5 of the state Constitution `to establish the manner and scope of review of commission action in a court of record,' the Legislature has explicitly restricted the jurisdiction of the superior court in cases involving the CPUC." (Id. at p. 383.) We then went on to cite section 1759, which was at issue in PegaStaff I and is at the heart of this case. It provides: "(a) 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. [¶] (b) The writ of mandamus shall lie from the Supreme Court and from the court of appeal to the commission in all proper cases as prescribed in Section 1085 of the Code of Civil Procedure."
In PegaStaff I, plaintiff PegaStaff sued the CPUC, claiming, among other things, that Article 5 of the Public Utilities Code was unconstitutional. Article 5 required the CPUC to take steps to implement the goals of encouraging and developing the use of women, minority and disabled veteran-owned business enterprises within the public utility sector. (PegaStaff I, supra, 236 Cal.App.4th at pp. 377, 381.) PegaStaff sought a declaration that the provisions of Article 5 were unconstitutional, and an injunction against their enforcement by the CPUC. (Id. at p. 384.) In concluding that the superior court did not have jurisdiction over the CPUC because of section 1759, we wrote that section 1759 "make[s] plain that a duty set forth in law is an official duty. Nothing about that language suggests that a law must first be found constitutional or otherwise valid in order to be a source of the CPUC's `official duties.' So long as a law was validly enacted by the Legislature, any duties such statute imposes on the CPUC are `official duties' within the meaning of section 1759, and the superior courts lack jurisdiction to interfere with the duties it imposes." (PegaStaff I at p. 385.)
The PRA was modeled on the federal Freedom of Information Act (5 U.S.C. § 552 et seq.) for the purposes of giving members of the public access to information possessed by public agencies. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425 (Filarsky).) In enacting the PRA, the Legislature declared that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (Gov. Code, § 6250.) To that end, the PRA establishes a statutory scheme under which a state agency must respond to a request for public records, either by complying with the request or by notifying the requestor that records are not subject to disclosure and providing the reason why. (See Gov. Code, §§ 6253-6254; Filarsky, supra, 28 Cal.4th at p. 425.)
It is undisputed that the PRA applies to the CPUC.
The PRA also establishes "specific procedures for seeking a judicial determination of a public agency's obligation to disclose records in the event the agency denies a request by a member of the public." (Filarsky, supra, 28 Cal.4th at p. 426.) These procedures are set forth in sections 6258 and 6259 of the Government Code.
Government Code section 6258 states that "Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under [the Act]. The times for responsive pleadings and for hearings in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time." (Emphasis added.)
Government Code section 6259 describes the process of judicial review in detail, and begins with a specific reference to the superior court: "(a) Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the cases after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow." If the court finds that the decision to refuse to disclose was not justified under Government Code sections 6254 or 6255, which describe the "[e]xemption of particular records" to disclosure and the "[j]ustification for withholding records," respectively, the court orders the records disclosed; if the court determines otherwise, the court returns the records to the public official and issues an order supporting the decision not to disclose. (Gov. Code, § 6259, subd. (b).)
Government Code section 6259, subdivision (c) provides that a superior court order directing disclosure or supporting the public official's decision refusing disclosure is reviewable by "petition to the appellate court for the issuance of an extraordinary writ," and sets out the time requirements for seeking such relief, as well as the grounds for seeking a stay of relief and the availability of contempt of court for failure to obey the order of the court. The statute also provides for court costs and reasonable attorney fees to a prevailing plaintiff, and the possibility of court costs and reasonable attorney fees to the public agency if the plaintiff's case is clearly frivolous. (Id., subd. (d).)
The CPUC demurred to the Complaint on the ground that section 1759 divested the superior court of jurisdiction.
We are aware of no published cases that have addressed the precise issue before us. In a closely analogous case regarding another sunshine-type ordinance in the Government Code that also imposes duties on the CPUC, our colleagues in the Fourth District held in Disenhouse, supra, 226 Cal.App.4th 1096 that section 1759 divested the superior court of jurisdiction to review claims that CPUC was not complying with the Bagley-Keene Open Meeting Act (Bagley-Keene). Similar to the PRA, the intent of Bagley-Keene is "that actions of state agencies be taken openly and that their deliberation be conducted openly." (Gov. Code, § 11120.) And like the PRA, Bagley-Keene applies to the CPUC. (Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781, 797.) In Disenhouse, an individual filed a complaint and then an application for an injunction requiring a CPUC meeting to be opened to the general public. The superior court denied the injunction and entered a judgment of dismissal on the ground that it had no jurisdiction under section 1759. In upholding the superior court's decision, the Court of Appeal in Disenhouse applied the "long-standing rule requiring us to construe the [Bagley-Keene] Act and section 1759 `in a manner which harmonizes their language and avoids unnecessary conflict.' (Waters v. Pacific Tel. Co. (1974) 12 Cal.3d 1, 11.)" (Disenhouse, supra, at p. 1102.) That entailed construing the judicial enforcement provisions of the state's open meeting law (Gov. Code, § 11130.3, subd. (a)) in light of section 1759, subdivision (b). Government Code section 11130.3, subdivision (a) provides that interested persons could "commence an action by mandamus, injunction, or declaratory relief" for the purposes of stopping or preventing violations of the open meeting law. (Emphasis added.)
The Court of Appeal in Disenhouse had little difficulty concluding that the two statutes could be harmonized and that the superior court did not err in dismissing the case: "Our task is straightforward in this case because a mandamus action may be brought against the commission in the Supreme Court or the Court of Appeal in appropriate cases (§ 1759, subd. (b)), and a mandamus action is one of the available means of enforcing the [open meeting act]. (Gov. Code §§ 11130, subd. (a), 11130.3, subd. (a).)" (Disenhouse, supra, 226 Cal.App.4th at p. 1102.)
In so concluding, the court in Disenhouse made clear that its holding did not "effectively exempt" the CPUC from the reach of the open meeting act. (Disenhouse, supra, 226 Cal.App.4th at p. 1102.) "Rather, it respects both the Legislature's aims in placing limits on judicial review of commission actions as well as the Legislature's aims under the [Open Meeting] Act." (Id. at p. 1102.)
We conclude that the duty to comply with the PRA is unquestionably an "official duty" of the CPUC. (PegaStaff I, supra, 236 Cal.App.4th at pp. 384-385.) A "writ of mandate in any court of competent jurisdiction" is one of the statutory means available to enforce the PRA (Gov. Code, § 6258, emphasis added), and a "writ of mandamus" may be brought against the CPUC in the Supreme Court or the Court of Appeal in appropriate cases under section 1759, subdivision (b).
As in Disenhouse, our limited holding does not exempt the CPUC from the requirements of the PRA, or limit Aguirre from seeking judicial relief to enforce his rights under the PRA. He simply may not seek that relief at the superior court. Our holding respects the mandate of section 1759, subdivision (b).
In opposition to the writ, Aguirre does not cite our decision in PegaStaff I, let alone distinguish it.
This is not persuasive. First, Government Code section 6258 describes a PRA challenge being brought in "any court of competent jurisdiction." This phrase implies the existence of a writ proceeding in a court other than the superior court. Second, by its nature, the broad limitation on jurisdiction in section 1759, subdivision (a) will sometimes result in depriving the superior court of jurisdiction it might otherwise have as a court of general jurisdiction had the party been other than the CPUC. (See Cal. Const., art. VI, § 10.) This is so even where there is a statute that explicitly provides for relief in a superior court. For example, in Independent Laundry v. Railroad Commission (1945) 70 Cal.App.2d 816 (Independent Laundry), a landlord sued its tenant, the gas company, and the Railroad Commission (the predecessor to the CPUC
Aguirre also contends that the Legislature did not intend for section 1759 to remove jurisdiction from the superior court in PRA cases, because there is a particular provision of the PRA (Gov. Code, § 6253.4) that requires the CPUC to comply with the PRA, and this must be "paramount" to the "general provisions" of section 1759. Aguirre asserts that "[t]his interpretation is reinforced by the Constitutional mandate that statutes shall be `narrowly construed if it limits the right of access,'" citing California Constitution, article I, section 3, subdivision (b)(2).
We are not persuaded. Article I, section 3, subdivision (b)(1) of the California Constitution states that the "people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny." Article I, section 3, subdivision (b)(2), relied on by Aguirre, is a rule of construction, and states in part: "A statute . . . including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access."
Aguirre has not shown how section 1759 limits any right of access. The CPUC is required to comply with the PRA, whether review is in the superior court or the appellate court in the first instance. If there is a dispute as to whether the CPUC has complied with the PRA, filing an action against the CPUC in an appellate court, as required by section 1759 and contemplated as a possibility by Government Code section 6258, will not limit the public's right to access to the documents. Aguirre's attempt to argue otherwise is not based on section 1759, but on the CPUC's own administrative procedures for making and responding to PRA requests, as set forth in General Order No. 66-C. But this is entirely separate from whether the superior court enforces a PRA request, rather than an appellate court in the first instance.
Aguirre also contends that original appellate jurisdiction over PRA claims cannot have been intended and will not work because the appellate court would not be able to review any documents withheld by the CPUC in camera to determine whether a statutory exemption is valid. This argument is without merit; neither Government Code section 6258 nor section 1759 compels this conclusion. Aguirre's theory is that withheld documents would be considered "new evidence" under Public Utilities Code section 1757, subdivision (a), which states that "[n]o new or additional evidence shall be introduced upon review by the court." But as the CPUC points out, if the CPUC denied a PRA request for documents, it would have reviewed the applicable records in reaching its decision, which would thus make them part of the CPUC's official record subject to review before a Court of Appeal (see Pub. Util. Code § 1706); and if the record did not contain the documents, the CPUC might leave itself open for reversal for lack of substantial evidence to support its decision. (Pub. Util. Code § 1757.1, subd. (a)(4) [court may reverse commission when order "is not supported by the findings"].)
Much of Aguirre's opposition to the writ petition argues the merits of his PRA request, including several pages that intersperse photographs of the key individuals involved and reproductions of handwritten notes and emails right into the text. As we indicated at the outset, we are not reaching any decision on the merits of the PRA request, and the merits do not inform our decision as to subject matter jurisdiction.
Because we conclude that the superior court had no jurisdiction other than to sustain the demurrer without leave to amend under section 1759, we do not need to address the other ground for this writ petition — Aguirre's failure to exhaust administrative remedies.
The superior court is directed to sustain the demurrer without leave to amend and is prohibited from conducting any further proceedings in this matter.
Richman, Acting P.J. and Stewart, J., concurs.
Neither Hartwell nor PegaStaff II involved lawsuits against the CPUC. They are part of a line of cases which concern third party lawsuits against a CPUC regulated utility, rather than against the CPUC itself. In PegaStaff II, we addressed to what extent section 1759 bars jurisdiction in superior courts in actions filed against regulated utilities and the "`"potential conflict"'" between section 1759 and Public Utilities Code section 2106, which permits a private right of action against regulated utilities. (PegaStaff II, supra, 239 Cal.App.4th at p. 1315.) In PegaStaff II, we concluded that the superior court had jurisdiction in a case against PG&E challenging its minority enterprise program. In so holding, we discussed and applied the test developed in Covalt, supra, 13 Cal.4th 893 in actions against regulated utilities. As we described: "`In Covalt, the Supreme Court "`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.'"'" (PegaStaff II, supra, 239 Cal.App.4th at p. 1315.) "The issue in Covalt was whether section 1759 barred a superior court action for nuisance and property damage allegedly caused by electric and magnetic fields from power lines owned and operated by a public utility. [Citation.] The court, considering the third prong of the test, concluded that a superior court verdict for plaintiffs would be inconsistent with the PUC's conclusion `that the available evidence does not support a reasonable belief that 60 Hz electric and magnetic fields present a substantial risk of physical harm, and that unless and until the evidence supports such a belief regulated utilities need take no action to reduce field levels from existing power lines.' [Citation.] [¶] Since Covalt was decided, courts have had repeated occasion to apply the test it established." (PegaStaff II, supra, 239 Cal.App.4th at pp. 1315-1316.)
Hartwell was one of those cases: a lawsuit was brought by a resident against water providers who were regulated by the CPUC, and against nonregulated water providers and industrial defendants who were not regulated by the CPUC. The nonregulated water providers and industrial defendants claimed that section 1759 applied to preempt superior court actions against them as well as the CPUC regulated utilities. Their claim was in part based on the contention that the statutory language in section 1759 does not distinguish between utility and nonutility parties to a lawsuit. Our Supreme Court found this argument meritless, and rejected it for many reasons. Quoting from the Court of Appeal decision in Hartwell with approval, the Supreme Court in Hartwell wrote, "`Section 1759 provides that no trial level court may "review, reverse, correct, or annul" or "enjoin, restrain, or interfere with" the PUC in its performance of its duties. By no stretch of language or logic does this mean that trial courts may not decide issues between parties not subject to PUC regulation simply because the same or similar issues are pending before the PUC or because the PUC regulates the same subject matter in its supervision over public utilities.' . . . [¶] We agree." (Hartwell, supra, 27 Cal.4th at p. 280.) It was in this context that the Supreme Court in Hartwell wrote that "when read in context with the entire regulatory scheme, section 1759 must be read to bar superior court jurisdiction that interferes with the PUC's performance of its regulatory duties, duties which by constitutional mandate apply only to regulated utilities," and a lawsuit against nonregulated defendants was not barred by section 1759. (Id. at pp. 280-281.)
