Judge Thomas D. Long, Case 21STCV26450 2023-04-07 Tentative Ruling

On July 19, 2021, Plaintiff Macy's Retail Holdings, LLC filed this action against Defendant Southern California Edison Company.

On October 3, 2022, Plaintiff served Demands for Inspection on Defendant, and on October 26, 2022, Defendant served responses. (Schwartz Decl. ¶¶ 3-4.) After meeting and conferring, Defendant served supplemental responses to Demand Nos. 2 and 3 on December 19, 2022. (See Schwartz Decl. ¶¶ 11, 13.) The parties further met and conferred, but Defendant did not timely provide its portion of the Joint Stipulation before Plaintiff’s motion to compel. (See Human Decl. ¶ 11.)

On March 3, 2023, Plaintiff filed a motion to compel further responses to the demand for inspection. (See Code Civ. Proc., § 2031.310, subd. (a).) On March 24, 2023, Defendant filed a supplemental memorandum, and on March 28, 2023, Plaintiff filed a supplemental memorandum.

Demand No. 1 demands an inspection of the Vault, which is defined as “the underground vault owned and controlled by SCE which services Macy’s STORE at South Bay Galleria Mall, 1801 Hawthorne Boulevard, Redondo Beach, CA, 90278.”

Defendant objection on the grounds that this demand “is burdensome and oppressive in that the vault would need to be de-energized prior to inspection and would interrupt service to Edison customers other than the propounding party for purposes other than repair or improvements of the system, which is not permissible pursuant to Rule 14 adopted by the Public Utilities Commission.” Defendant also contended that the costs were burdensome, inspection will not lead to the discovery of any admissible evidence, and the costs and burden outweigh any benefit for need for inspection. Defendant concluded, in bold font, “No access to the vault will be permitted.”

In its supplemental briefing, Defendant argues that Plaintiff has not established good cause to inspect the Vault. (Defendant’s Suppl. Brief at pp. 2-3.) The condition of the Vault is directly relevant to Plaintiff’s allegation that its electrical equipment was damaged by water in the conduit that connects the Vault to the electrical panel. (See Complaint ¶ 11.) Defendant contends, without evidence, that it has already produced discovery about the condition of the Vault. (Defendant’s Suppl. Brief at p. 3.) The Court concludes that this demand could lead to the discovery of admissible evidence, and Defendant’s objections on this point are overruled.

Defendant contends that the demand is burdensome because Plaintiff “is requesting that the inspection occur at night/after hours,” it would require at least 15 days to schedule an electrical outage for the inspection, and the four-person crew would cost at least $3,500 or in excess of $6,000 for an after-hours inspection that would take at least six hours to complete. (Defendant’s Suppl. Brief at p. 2.) Plaintiff’s correspondence with Defendant states that it has “indicated a willingness to be flexible as to timing (including conducing the inspection during off-hours),” without a demand of “at night/after hours” (Schwartz Decl., Ex. 4)—a position that Plaintiff maintains in its supplemental briefing. (Plaintiff’s Suppl. Brief at p. 2.) Even if the inspection were to occur after hours, Defendant’s argument of undue burden and oppression is unavailing when considering the limited time and expense that Defendant says it will incur. The Court overrules Defendant’s objections about burden and oppression.

Defendant also argues that the Court lacks jurisdiction to order it to de-energize the Vault due to Tariff Rule 14 and Public Utilities Code section 1759. (Defendant’s Suppl. Brief at pp. 3-4.) “Tariff rules are filed with and approved by the California Public Utilities Commission (‘PUC’) pursuant to the PUC’s exclusive jurisdiction over the regulation of utilities.” (Id. at p. 3.)

Tariff Rule 14 provides: “SCE, whenever it shall find it necessary for the purpose of making repairs or improvements to its system, will have the right to suspend temporarily the delivery of electricity. In all such cases, as reasonable notice thereof as circumstances will permit will be given to the customer, and the making of such repairs or improvements will be prosecuted as rapidly as may be practicable and, if practicable, at such times as will cause the least inconvenience to the customers.” (Schwartz Decl., Ex. 6 at p. 1, § B.) According to Defendant, because “Plaintiff’s request does not involve either repair or improvements of the system, Rule 14 does not permit the interruption of delivery of electrical service in order to permit Plaintiff to enter the vault for litigation purposes.”

Defendant also cites Public Utilities Code section 1759, which provides: “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.” (Pub. Util. Code, § 1759, subd. (a).)

“[S]ection 1759 is a statute involving subject matter jurisdiction, and divests trial courts of jurisdiction to entertain lawsuits that would interfere with the PUC’s regulation of utilities.” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 143.) “To determine whether an action interferes with the PUC in the performance of its duties warranting preclusion by Section 1759, the Court must find each of the following to be true: (1) the PUC must possess the authority to adopt a regulatory policy regarding the subject matter of the action; (2) the PUC must have exercised the authority to adopt such policies; and (3) the court action would hinder or interfere with the PUC’s exercise of such regulatory authority.” (Kairy v. SuperShuttle Intern., Inc. (N.D. Cal. 2009) 721 F.Supp.2d 884, 887.)

The Court finds that the PUC did not exercise its authority regarding this subject matter and compelling discovery does not interfere with any regulatory authority. By Defendant’s own characterization, the Tariff Rule is Defendant’s (not PUC’s), which it filed with the PUC for PUC’s approval. Under Section B of Tariff Rule 14, Defendant has the right to temporarily suspend the delivery of electricity “whenever it shall find it necessary for the purpose of making repairs or improvements to its system,” and it must provide reasonable notice to customers. But Section A also contemplates interruptions or shortages of supply when the “interruption or shortage results from any cause not within [Defendant’s] control.” Under those circumstances, Defendant is not required to give notice to customers when the “interruption in the delivery of electric energy to customers results from or is occasioned by causes other than the exercise by SCE of its right to suspend temporarily the delivery of electric energy for the purpose of making repairs or improvements to its system.” A court order to do what is necessary to permit inspection (including disruption of power) would appear to be a cause not within Defendant’s control, outside the scope of Section B’s language about “repairs or improvements.” Additionally, nothing in Tariff Rule 14 prohibits disruptions of service.

This discovery dispute here is vastly different from, for example, an action to discontinue emissions of electromagnetic radiation, which would clearly interfere with the PUC’s authority to adopt policies on whether electric and magnetic fields arising from the powerlines of regulated utilities are a public health risk and what action should be taken to minimize that risk. (See San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 923-934.)

The motion is granted. Defendant is ordered to permit inspection of the Vault. Although notice may not be required under Tariff Rule 14, Defendant shall also provide notice to its customers of any interruption of electricity.

Demand No. 2 demands an inspection of “The cable that connected the VAULT to MACY’S switchgear that was removed by SCE following the January 23, 2019 incident (inspection at the location of the VAULT).” Demand No. 3 demands an inspection of “The cable that connected the VAULT to MACY’S switchgear that was removed by SCE following the February 10, 2019 incident (inspection at the location of the VAULT).”

Defendant’s amended response states: “Edison is unable to comply with this demand as the requested cable no longer exists in Edison’s possession, custody, or control. SCE’s investigation into what happened to the cable once it was removed is ongoing. Edison reserves the right to correct or amend its responses if and when it becomes aware of any inadvertent omissions or errors in its responses by subsequent discovery of additional information and/or of relevant documents and/or materials.”

The cables are directly relevant to Plaintiff’s claims arising from electrical problems with Defendant’s equipment. (See Complaint ¶¶ 9, 11.) Defendant’s responses about its inability to comply are inadequate. (See Code Civ. Proc., § 2031.230.) The motion is granted, and Defendant is ordered to provide a further response, a statement of reasonable diligence, and an explanation of what happened to the cables. (See Joint Stipulation at pp. 6-7.)

The Motion to Compel Further Discovery Responses to Demand for Inspection and Allow Inspection of Property is GRANTED.

Defendant is ordered to permit inspection of the Vault within 30 days. Defendant is also ordered to provide supplemental responses to Demand Nos. 2-3 within 30 days.

The request for sanctions is also GRANTED. (See Code Civ. Proc., § 2031.310, subd. (h).) Defendant is ordered to pay sanctions of $2,325.00 to Plaintiff within 30 days.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court