17. Wise66 v. PG&E

132 Cal. App. 4th 725, 2005 Cal. App. LEXIS 1418 (2005)

While only tangentially addressing Section 1759 (concluding that it did not bar an action against PG&E related to PG&E’s failure to maintain an gas meter inspection program) Wise is worth reviewing because the Court of Appeal (First District, Division 5) addresses the effect to be given to the Commission’s election NOT to open an enforcement proceeding after indicating that it was considering doing so. The Court sets forth the required elements that must attend a Commission decision before it will be given any preclusive effect by the Court. It held that a letter from the Commission’s General Counsel indicating that the Commission would not proceed was not entitled to any preclusive effect in the Superior Court case. The decision also provides an exposition on the interplay between the doctrines of primary jurisdiction67 and issue preclusion.
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66This matter is known as Wise II. In an earlier opinion, Wise I, the Court found that 1759 did not bar the matter from proceeding in Superior Court but that that court should stay its proceeding pending action by the Commission. Wise v. PG&E (Wise I), 77 Cal. App. 4th 287 (1999).
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This memorandum does not address primary jurisdiction to any significant degree. The reader may wish to note a recent decision of the Court of Appeal (Second District, Division Five) in which a divided Court upheld an order of the trial court abstaining from hearing a complaint over the level of AT&T’s charges for non-published telephone listings. The Court held that the trial court did not abuse its discretion by sustaining a demurrer to the complaint, concluding that the case “delves into complex economic policy and regulation that is better left to the Legislature.” Willard v. AT&T, 204 Cal. App. 4th 53, 2012 Cal. App. LEXIS 266 (March 6, 2012).

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