Gas v. Superior Court of San Joaquin Cnty.

95 Cal.App.5th 819

313 Cal.Rptr.3d 764

PACIFIC GAS AND ELECTRIC COMPANY, Petitioner,

v.The SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent;

South San Joaquin Irrigation District, Real Party in Interest.

C097529

Court of Appeal, Third District, California.

Filed September 21, 2023

Manatt, Phelps & Phillips, George M. Soneff, Edward G. Burg, Joanna S. McCallum and David T. Moran, Los Angeles, for Petitioner.

Nossaman and Bradford B. Kuhn, Irvine, for California Water Association and Southern California Edison Company as Amici Curiae on behalf of Petitioner.

Horvitz & Levy, John A. Taylor, Jr., and Bradley S. Pauley, Burbank, for San Diego Gas and Electric Company as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

Matteoni, O'Laughlin & Hechtman, Margaret M. O'Laughlin, Gerald Houlihan; Murphy & Evertz, Douglas J. Evertz Costa Mesa, and Jennifer Riel McClure, for Real Party in Interest.

Best, Best, & Krieger, Kendall H. MacVey, Riverside, and Guillermo A. Frias, Los Angeles, for California Water Agencies, League of California Cities and California Municipal Utilities Association as Amici Curiae on behalf of Real Party in Interest.

RENNER, J.

Petitioner Pacific Gas and Electric Company (PG&E) seeks extraordinary writ relief for the second time arising out of the parties’ ongoing efforts to clarify the standard of proof to be applied at trial on South San Joaquin Irrigation District's (the District) right to take part of PG&E's electric distribution system under the Eminent Domain Law ( Code Civ. Proc., § 1230.010 et seq. ).¹ PG&E emphasizes that it does not challenge the validity of the resolution of necessity adopted by the District. PG&E does challenge the District's right to take its property on grounds that conflict with various findings the District made in its resolution. Because these challenges are authorized by statute (§§ 1250.360, subd. (f), 1250.370), PG&E can succeed at trial by essentially disproving one of these findings by a preponderance of the evidence. Further, we agree with PG&E that the superior court's September 6, 2017 and November 28, 2022 orders erred in concluding that PG&E also needed to demonstrate the District abused its discretion in adopting its resolution of necessity.

Therefore, we shall issue a peremptory writ of mandate compelling the superior court to vacate its September 6, 2017 and November 28, 2022 orders, and enter a new order consistent with this opinion.

I. BACKGROUND

A. Procedural Background

Real party in interest the District is a California special district that provides irrigation water and domestic water service to customers in southern San Joaquin County. PG&E is a public utility that owns and operates an electric distribution system that provides retail electric service within the District's service area. In 2016, the District filed the underlying eminent domain action to acquire the portion of PG&E's electric distribution system that is within the District's service territory in order to provide its own retail electric service. The complaint attached a resolution of necessity adopted by the District. The resolution contained the following findings by the District: (1) the public interest and necessity require the project; (2) the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; (3) the property is necessary for the proposed project; and (4) the public use by the District of PG&E's electric distribution system constitutes a more necessary public use than the use for which the property is appropriated by PG&E.

PG&E's answer included an objection to the District's right to take its property under section 1250.360, subdivision (f), on the grounds that the District's takeover of the property was not for a more necessary public use. PG&E further objected pursuant to section 1250.370 on the grounds that: (1) the public interest and necessity do not require the project; (2) the project is not planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and (3) the property described in the complaint is not necessary for the proposed project. The answer did not state PG&E challenged the validity of the resolution of necessity or make any reference to section 1245.255. That statute provides for "judicial review of the validity of the resolution" as well as a challenge to the effect of the resolution on the grounds that "its adoption or contents were influenced or affected by gross abuse of discretion by the governing body." ( § 1245.255, subds. (a), (b).)

In 2017, the parties filed cross-motions to determine the standard of review and/or standard of proof at trial on the District's right to take. In its motion, PG&E emphasized that it was not challenging the validity of the resolution of necessity or its evidentiary effect under section 1245.255. Nonetheless, in a September 6, 2017 order, the Honorable Carter P. Holly characterized PG&E's challenges as to "the District's right to take and the validity of the District's adopted Resolution of Necessity." Judge Holly held "PG&E may introduce additional evidence, outside the record of the District's Resolution of Necessity proceeding, to attempt to disprove the District's determinations that the four findings of public use and necessity have been established. [¶] While the District's Resolution establishes a rebuttable presumption that the four public use and necessity requirements have been satisfied, the Resolution is a quasi-legislative act of the governing body of a public entity, which cannot be overturned absent a finding that the body committed a gross abuse of discretion. The quasi-legislative nature of the Resolution is not altered because extrinsic evidence can be considered by the Court. [¶] To succeed at trial, PG&E has the burden of proof to show that the District committed a gross abuse of discretion in adopting the Resolution by showing that there is a lack of substantial evidence to support the public use and necessity determinations."

In October 2017, PG&E filed a petition for writ of mandate in this court seeking interlocutory review of the September 6, 2017 order. We issued an order to show cause. In January 2018, before briefing was complete on PG&E's writ petition, the superior court granted PG&E's pending motion to dismiss the eminent domain action on other grounds, and entered judgment for PG&E. Thereafter, PG&E filed a notice of case resolution and withdrawal of petition for writ of mandate in this court, explaining that the underlying case had been resolved by judgment in its favor and requesting dismissal of the writ proceeding. The District opposed dismissal. We ruled that PG&E's notice would be treated as a motion to withdraw the writ petition, granted the motion, and vacated the order to show cause.

In Pacific Gas & Electric Company v. San Joaquin Local Agency Formation Commission (Dec. 15, 2021, C086008) 2021 WL 5913702 [nonpub. opn.], a different panel of this court reversed the 2018 judgment of dismissal and remanded the action for further proceedings.

On remand, the District filed a section 170.6 peremptory challenge to Judge Holly, and the Honorable Robert T. Waters was assigned to the case.

PG&E filed a motion in limine for determination of the standard of proof. Again, PG&E emphasized it was not challenging the validity of the resolution of necessity or its evidentiary effect under section 1245.255. The District opposed the motion.

On November 28, 2022, Judge Waters issued an order concluding he could not reconsider or modify Judge Holly's 2017 order.² As a result, the court "confirm[ed]" the prior ruling in its entirety, including that:

"PG&E may introduce additional evidence, out of the record of [the District]’s Resolution of Necessity proceeding, to attempt to disprove [the District]’s determinations that the four findings of public use and necessity have been established [citation]; and [¶] [t]he standard of judicial review is whether [the District] committed a gross abuse of discretion in adopting the Resolution by showing that there is a lack of substantial evidence to support the public use and necessity determinations."

The court further stated the 2017 order "did not resolve the issue of the applicable burden of proof standard" and ordered that "the applicable burden of proof standard for PG&E at the Right to Take trial is the preponderance of the evidence standard." The court also stated, pursuant to section 166.1, that it believed the issues presented in PG&E's motion and addressed in the 2017 order "present controlling questions of law as to which there are substantial grounds for difference of opinion, and that appellate resolution of them may materially advance the conclusion of the litigation."

PG&E filed this petition for writ of mandate or other appropriate relief asking this court to direct the superior court to "vacate the 2022 Order and the incorporated 2017 Order, and instead grant PG&E's motion in limine."

The District submitted a preliminary opposition arguing we should summarily deny the petition because: (1) it is a procedurally improper attempt to secure a second opportunity to appeal an interim order long after the time to challenge that order has expired; (2) this court declined to address this issue in our 2021 opinion; (3) there are no extraordinary circumstances warranting writ relief; and (4) the 2017 Order was not erroneous.

We issued an order to show cause why the relief prayed for in this proceeding should not be granted. The District filed a return by answer addressing only PG&E's substantive arguments regarding the proper burden of proof at trial.

B. Legal Background

" ‘Eminent domain is the right of the people or government to take private property for public use.’ " ( Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 377, fn. 3, 41 Cal.Rptr.2d 658, 895 P.2d 900.) Under California's statutory Eminent...