9. Rivera Mata v. PG&E

224 Cal. App.4th 309; 2014 Cal. App. LEXIS 199 (February 28, 2014)

The Court of Appeal (First District, Division 3) reversed the trial court’s decision which, relying on Section 1759 as construed in Sarale (Para. 12, infra), dismissed negligence and premises liability complaints by plaintiffs, the heirs of decedent electrocuted while trimming a tree that had grown above PG&E’s 12,000-volt line. While the plaintiffs in Sarale claimed PG&E had trimmed too much, the plaintiffs here claimed it had trimmed too sparingly. The Court distinguished Sarale in two ways. First, in Sarale, the Court held that because the Commission had authorized PG&E to determine, based on safety and reliability considerations, whether to exceed the minimum clearances established in General Order (GO) 95, a claim that PG&E had trimmed to excess lay exclusively with the Commission; Rivera Mata held that while Section 1759 barred the Superior Court from entertaining a claim that PG&E had trimmed in excess of the minimum, Section 1759 did not bar a claim that PG&E had failed to trim as required by public safety or service reliability. (The court cited the “in aid and not in derogation of” text, which has its genesis in Dyke Water, p. 53, supra, observing that claims that PG&E failed to use due care in making such a determination complement and reinforce GO95.) Second, the Court reasoned that, in Sarale, the plaintiffs had an available remedy at the Commission which could have proscribed excessive trimming; here, however, dismissing the action would leave plaintiff without any remedy since the Commission may not award damages arising out of PG&E’s past failure to exercise due care in making a determination whether to trim more than the minimum required in GO 95. (One can legitimately question whether this second point has any basis in prior Section 1759 jurisprudence which has resulted in more than one plaintiff being left without a remedy.) The Court concluded that Section 1759 did not prevent the Superior Court from considering claims involving alleged inadequate tree trimming around Commission regulated power lines and held that that the issue of whether PG&E breached its duty of due care was not within the exclusive jurisdiction of the Commission.

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