Filed 4/7/15 Davis v. Southern Cal. Edison Co. CA3/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

DAVID DAVIS,

Plaintiff and Appellant,

v.

SOUTHERN CALIFORNIA EDISON 

COMPANY,

Defendant and Respondent.

 B256737

 (Los Angeles County

 Super. Ct. No. EC061441)

APPEAL from a judgment of the Superior Court of Los Angeles County, Donna 

Fields Goldstein, Judge. Affirmed.

David Davis, in pro. per., for Plaintiff and Appellant.

Southern California Edison Company, Leon Bass, Jr., and Julia A. Mosel for 

Defendant and Respondent.

_______________________
2

INTRODUCTION

This action arises from plaintiff David Davis’s applications to Southern California 

Edison Company (SCE) to interconnect solar generating systems on property he owned to 

the SCE electricity distribution system (electricity grid) to generate electricity for use on 

those properties and to sell to SCE. Davis contends that SCE, in processing his 

applications, violated SCE’s Tariff Rule 21 (Rule 21), Tariff Rule 16 (Rule 16), the 

California Renewable Energy Small Tariff (CREST) program, and the Net Energy 

Metering (NEM) program.1

SCE filed a demurrer on the ground that the California Public Utilities 

Commission (PUC) had exclusive jurisdiction to resolve the dispute and, therefore, the 

superior court lacked jurisdiction to hear Davis’s claims. At issue on appeal is the 

potential conflict between Public Utilities Code section 1759,

2 which limits jurisdiction 

to review an order of the PUC to the Court of Appeal and the Supreme Court, and 

section 2106, which grants jurisdiction to the superior court to hear actions for damages 

against a public utility that violates California law. The trial court sustained SCE’s

demurrer without leave to amend, entered judgment against Davis, and dismissed the case 

without prejudice.3

 

1 All three tariffs have been published and approved by the California Public 

Utilities Commission and, therefore, have “the force . . . of a statute.” (Dyke Water Co. v. 

Public Utilities Com. (1961) 56 Cal.2d 105, 123; accord, Los Angeles Cellular Telephone 

Co. v. Superior Court (1998) 65 Cal.App.4th 1013, 1018.)

2 All further statutory references are to the Public Utilities Code unless otherwise 

indicated.

3 We find that the court’s dismissal without prejudice is an appealable order because 

the dismissal was by the court without any agreement by the parties as to future litigation 

or waiver of the statute of limitations. (See Kurwa v. Kislinger (2013) 57 Cal.4th 1097,

1106 [distinguishing judgments where the parties agree to toll the statute of limitations, 

holding, “[i]t is that assurance—the agreement keeping the dismissed count legally 

alive—that prevents the judgment disposing of the other causes of action from achieving 
3

We conclude that the trial court correctly held that the PUC had exclusive 

jurisdiction over Davis’s claims under our Supreme Court’s holding in San Diego Gas & 

Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 917-918 (Covalt)

4 because 

adjudication of Davis’s claims would “‘hinder or frustrate the commission’s declared 

supervisory and regulatory policies’” with respect to interconnection of solar generating 

facilities under Rule 21, Rule 16 and the CREST and NEM programs.

While Davis’s remedies before the PUC may be more limited than those available 

in the trial court, to the extent Davis has viable damage claims following the PUC’s 

adjudication of his administrative complaints currently pending before the PUC, those 

claims will only become ripe for filing in the trial court once the PUC reaches a final 

decision. (See Schell v. Southern Cal. Edison Co. (1988) 204 Cal.App.3d 1039, 1047.)

We affirm.

 

finality”]; Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650, 666 [dismissal 

of claims under California Environmental Quality Act (CEQA) appealable where nonCEQA claims were dismissed without prejudice absent any agreement of parties as to 

future litigation].) In this case, the trial court dismissed the case without any agreement 

by the parties as to future litigation or a waiver of the statute of limitations. While it 

appears the court envisioned a potential future lawsuit by Davis if he prevails before the 

PUC, this possibility does not render the judgment non-appealable.

4 Later courts have referred to the decision in San Diego Gas & Electric as the 

“Covalt” case because Covalt was a real party in interest in the case. (See, e.g., People ex 

rel. Orloff v. Pacific Bell (2003) 31 Cal.4th 1132, 1145; Hartwell Corp. v. Superior Court

(2002) 27 Cal.4th 256, 264 (Hartwell).)
4

FACTUAL AND PROCEDURAL BACKGROUND5

A. SCE’s Tariffs Governing Solar Generating Facilities6

1. SCE’s Tariff Rule 21

All residential solar generating facilities seeking to interconnect to SCE’s 

electricity grid must comply with Rule 21.

7

 Rule 21 governs all aspects of 

interconnection, including the interconnection application submission process, the 

process for reviewing interconnection applications, the assignment of a generator’s 

position in the interconnection queue, the engineering review details, the cost 

responsibilities of the generators and SCE, and the design and operation requirements for

the generating facility. Rule 21 applies both to solar generators that intend to sell power 

 

5 On review of a judgment of dismissal after sustaining of a demurrer, “[w]e assume 

the truth of all facts properly pled and the truth of facts that may be implied or inferred 

from these allegations.” (White v. State of California (2001) 88 Cal.App.4th 298, 304; 

accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) The facts in the 

factual background are therefore taken from Davis’s verified complaint, as well as 

documents in the record on appeal.

6 “‘“Tariffs” refer collectively to the sheets that a utility must file, maintain, and 

publish as directed by the [PUC], and that set forth the terms and conditions of the 

utility’s services to its customers . . . .’ [Citations.]” (Clean Energy Fuels Corp. v. 

Public Utilities Com. (2014) 227 Cal.App.4th 641, 644, fn. 1.)

Tariffs and tariff rules are authorized pursuant to section 489, subdivision (a), 

which provides: “The commission shall, by rule or order, require every public utility 

other than a common carrier to file with the commission within the time and in the form 

as the commission designates, and to print and keep open to public inspection, schedules 

showing all rates, tolls, rentals, charges, and classifications collected or enforced, or to be 

collected or enforced, together with all rules, contracts, privileges, and facilities which in 

any manner affect or relate to rates, tolls, rentals, classifications, or service . . . .”

7 Rule 21 was amended effective September 20, 2012, at which time Davis’s solar 

applications to SCE were pending. We note any changes to relevant sections of Rule 21 

below. Also, where a section has been moved or renumbered, we will include the new 

section number in brackets.
5

to SCE under the CREST program and to solar generators that intend to use their 

generation to offset their own electricity usage under the NEM program.

Rule 21 provides deadlines for the interconnection approval process. A threshold 

determination must be made as to whether the project is eligible for the “fast track.” 

Under section E.2.b.i, Rule 21 provides that “[n]on-Exporting and Net Energy Metered 

[NEM] Generating Facilities are eligible for Fast Track evaluation regardless of the Gross 

Nameplate Rating of the proposed Generating Facility.” For an “Exporting Generating 

Facility,” fast track is available under certain conditions set forth in section E.2.b.i. 

Section F.1.b provides for a “Fast Track Review” for projects “that do not require 

Detailed Study.”

Rule 21 provides deadlines for (1) determination of whether an application is 

complete, (2) completion of an initial engineering review once the application is 

complete, and (3) completion of SCE’s review of the application. We discuss these 

deadlines in more detail below.

Rule 21 provides in section K.1 for resolution of disputes: “In addition to the 

informal procedures for timeline-related disputes set out in Section F.1.d, the following 

procedures will apply for disputes arising from this Rule: [¶] . . . [¶] The Commission 

shall have initial jurisdiction to interpret, add, delete or modify any provision of this Rule 

or of any agreements entered into between Distribution Provider and Applicant or 

Producer to implement this tariff . . . and to resolve disputes regarding Distribution 

Provider’s [SCE’s] performance of its obligations under Commission-jurisdictional 

tariffs, the applicable agreements, and requirements related to the interconnection of 

Applicant’s or Producer’s Generating Facility or Interconnection Facilities pursuant to 

this Rule.” Section K.2.c provides procedures for parties to resolve disputes, including 

through mediation, and further, “[a]t any time, either Party may file a formal complaint 

before the Commission. . . .”
6

2. The CREST Solar Generation Program

Section 399.20, subdivision (a), declares the “intent of the Legislature to 

encourage electrical generation from eligible renewable energy resources.” SCE filed the 

CREST program with the PUC pursuant to subdivision (c), which requires utilities,

including SCE, to file with the PUC a standard tariff providing for the purchase of 

renewable energy from electric generating facilities. The PUC has approved the CREST 

program.

To be eligible for CREST, an SCE customer must own and operate an eligible 

solar generating facility that “[h]as an effective capacity of not more than 1.5 MW 

[megawatts] and is located on the premises owned or under the control of the customer.” 

Under section 399.20, subdivision (f), SCE was required to make CREST available to 

solar generating facilities “on a first-come-first-served basis,” assigning each generating 

facility a queue position based on the date it entered into a power purchase agreement 

with SCE. SCE was required to keep CREST open for eligible generators until SCE met 

its proportionate share of a statewide cap of 750 megawatts. Effective July 24, 2013, 

SCE met its obligation to purchase the required amount of eligible generation under 

CREST, and the CREST program closed to new customers.

3. The NEM Solar Generation Program

SCE established the NEM program pursuant to section 2827. NEM allows 

eligible customers who install renewable generation at their homes or businesses to offset 

their consumption of electricity by the amount of electricity they generate. (§ 2827, 

subd. (b)(6).) Section 2827 also provides for “‘[n]et surplus electricity compensation’” to 

a customer where the customer produces more power than it consumes over the course of 

a year. (Id., subd. (b)(9).) Rule 21 provides for expedited procedures for NEM 

generators seeking to interconnect to SCE’s electricity grid.
7

4. California Solar Initiative Program (CSI)

The PUC oversees the CSI program, which provides cash incentives to utility 

customers who install solar generating systems for their homes and other properties. In 

order to be eligible for CSI incentives, the solar generating system needs to be “sized” so 

that the electricity generated by the system offsets part or all of the customer’s electrical 

needs.

B. Davis’s Applications To Interconnect His Solar Generating Systems

Davis alleges he is a residential customer of SCE. SCE is a public utility subject 

to regulation by the PUC (Cal. Const., art. XII, § 1; § 201 et seq.). In 2012 Davis 

proposed to install solar generating systems on residential properties he owned in San 

Bernardino County. Davis submitted 20 applications, including for rental properties at 

65911 29 Palms Highway (8 units), 60215 and 60219 Alta Loma (4 units), 6804 Park 

Boulevard (5 units), 6807 Park Boulevard, and 6815 Park Boulevard. Davis also 

proposed to increase the size of the solar generator at his home in Joshua Tree from 6 to 

18 kilowatts (kW).

Davis planned to interconnect the solar systems on his properties with SCE’s 

electricity grid and to sell his surplus electricity to SCE in accordance with “any of the 

several tariffs” available for the sale of excess electricity. As we discuss below, Davis 

initially submitted his applications under the CREST tariff program. When those 

applications were not approved, he submitted similar applications under the NEM 

program.

C. Davis’s Complaint for Damages

Davis filed this action on November 20, 2013. All of the causes of action arise out 

of Davis’s attempt to interconnect solar generating systems on his properties to the SCE 

electricity grid. In his complaint, Davis alleges that SCE breached its duties owed to him 

pursuant to Rule 21, Rule 16, and CREST. Davis contends the court has jurisdiction to 

enforce these orders pursuant to section 2106, which provides that a public utility is liable 
8

for damages resulting from its unlawful acts or omissions under state law and that a 

person may bring “[a]n action to recover for such loss, damage, or injury . . . in any court 

of competent jurisdiction . . . .”

1. First Cause of Action for Deceit Relating to NEM Program

The complaint’s first cause of action alleges deceit in violation of Civil Code 

section 1710.2. Davis alleges that on April 20, 2012 the NEM Manager of SCE, Melissa 

Patrick, represented to him that “SCE has a procedure for reviewing all NEM residential 

applications for appropriate sizing,” but this statement was not true. Davis alleges he 

relied on this representation by building solar generators that “can not be used.”

As we discuss below, while this allegation is phrased as “deceit,” it tracks the 

allegations in the second complaint he filed with the PUC in November 2013 in which he 

alleges that some of his solar projects were not approved because they were too large and, 

as to others, he was required to reduce the size to obtain CSI incentive funding. Davis 

alleges he was damaged by the loss of use of some solar generators and the delay in 

approval of other generators.

2. Second Through Fourth Causes of Action Alleging Violation of NEM

 Program Deadlines

Davis’s second through fourth causes of action allege SCE’s failure to comply 

with Rule 21’s deadlines for processing NEM applications. Davis alleges that by the 

time his solar applications were approved, the solar systems had been in place and ready 

to turn on for over a year. He also alleges that at the time of filing the complaint, some of 

his solar applications had not been approved.

a. Davis’s NEM Applications

Davis initially applied to connect his solar generating systems under the CREST 

program, which we discuss below with respect to the sixth through eighth causes of 

action. When those applications were not approved, Davis proceeded to apply for 
9

approval under the NEM program. From April 4, 2012 to September 25, 2012 Davis 

submitted 20 applications to install solar systems for his home and rental properties under 

the NEM program. Davis submitted two sets of applications. One group of applications 

proposed to install for each house or unit 30 solar panels and one 5 kW inverter. The 5

kW units were proposed for the following properties: 6804 Park Boulevard (five units), 

6807 Park Boulevard, 6815 Park Boulevard, and 60215 and 60219 Alta Loma (four

units).

Davis also submitted applications for 10 kW projects for the eight rental units at 

his 65911 29 Palms Highway property. These projects included two 5 kW inverters and 

associated solar panels. Davis also proposed to increase the size of the solar generator on 

his home from 6 kW to 18 kW.

Between July 18, 2012 and October 12, 2012, SCE approved and interconnected 

all the proposed 5 kW systems. Davis alleges that “SCE expeditiously interconnected 

each project within 30 days (usually much less) of me sending the Job Card.”8

On September 5 and 6, 2012 SCE granted Davis permission to operate 10 kW 

systems for units 5 and 6 at the 29 Palms property. After receiving approval for units 5 

and 6, Davis built 10 kW systems for units 3 and 4, and SCE staff told Davis the 

applications for the two new systems “were fine.” Based upon SCE’s approval for units 

5 and 6 and the representation that the applications for units 3 and 4 “were fine,” Davis 

built the remaining 10 kW systems for units 1, 2, 7, and 8 starting on October 15, 2012.

While the applications for the 10 kW systems were pending, Davis filed two 

formal complaints with the PUC against SCE regarding SCE’s interpretation of the NEM 

tariff, which we discuss in more detail below. Davis alleges that in September 2012, 

when the PUC ordered SCE to answer Davis’s first complaint, “SCE stopped processing 

my NEM applications in the expeditious way that they had been previously [doing].” In 

 

8 The “Job Card” refers to the “Building and Safety Final Electrical Inspection Job 

Card” issued by the local building and safety department, which is the final document the 

applicant submits on a NEM application before the application is deemed complete.
10

November 2012 and January 2013 SCE retroactively deemed some applications 

incomplete that it had previously deemed complete.

Davis also alleges that when he submitted a corrected application for the solar 

system for his home in November 2012, he did not receive a response from SCE as to 

whether his corrected application was complete for 56 business days, until February 25, 

2013. Davis alleges that this violated SCE’s obligation under Rule 21 to inform an 

applicant whether its application is complete within 20 working days.

b. Davis’s Allegations of Non-compliance with Deadlines

The second cause of action alleges that SCE failed to comply with the requirement 

in Rule 21, section C.1.b.(1) [E.5.a] that SCE review interconnection applications for 

completeness and provide notice to the applicant within 10 working days of receipt

whether the application is complete. Davis alleges that SCE failed to inform him when 

his applications were complete, only letting him know when they were incomplete. 

Later, SCE retroactively deemed many of his applications for solar generation to be 

incomplete.

The third cause of action alleges that SCE failed to comply with the requirement 

that it complete the initial engineering review of each application within 20 business days 

from when the application is deemed complete, as required by Rule 21, section C.1.c 

[F.2.a].9 Davis alleges that because SCE did not complete engineering studies of his 

solar generating systems, he built them without knowing what upgrades would be 

necessary to interconnect to the SCE electricity grid, delaying his operation of those 

units.

The fourth cause of action alleges that SCE failed to comply with the 30-day 

deadline to complete the processing of NEM interconnection applications, as required by 

Rule 21, section C.2.d [D.13.b], or notify Davis “‘of the reason for the inability to 

 

9 Effective September 20, 2012, this time frame was reduced to 15 business days.
11

process the Interconnection Request and the expected completion date.’” Section D.13.b 

provides that qualifying generating facilities under the NEM program “shall normally be 

processed not later than thirty (30) Business Days following Distribution Provider’s 

receipt” of various documents, including “evidence of Applicant’s final electric 

inspection clearance from the Governmental Authority having jurisdiction over the 

Generating Facility.” (Italics added.) This section provides many exceptions to the 30-

day deadline and provides that certain applicants “are advised to submit their 

Interconnection Request at least six (6) months in advance of their planned Commercial 

Operation Date.”

Davis alleges that SCE delayed approval of some of his solar system applications 

and, because it did not inform him of the delay, Davis proceeded to build the units. Davis 

alleges that he was harmed by having to pay for electricity used prior to being allowed to 

turn on the solar systems.

3. Fifth and Ninth Causes of Action for Overcharges on NEM Upgrades

The fifth cause of action alleges that SCE failed to pay for distribution upgrades 

for NEM interconnections, as required by Rule 21, Table C.2 [E.4.f]. According to 

Davis, Rule 21 requires that SCE pay for “distribution” upgrades and the applicant pay 

for “interconnection” upgrades for NEM interconnections. The property at 65911 29

Palms Highway had eight units each with an electric meter. SCE upgraded the 

“distribution” conductor for the building and billed Davis $4,071.25 for the upgrade, 

even though the upgrade was SCE’s responsibility under Rule 21 as a “distribution” 

upgrade.

According to Davis, SCE later acknowledged that it had an obligation to perform a 

portion of the distribution system upgrades. On July 30, 2013 SCE performed 

distribution upgrades at its own expense, including “replacement of the distribution 

conductor from the transformer to the point of coupling where it connects to each of the 

four distribution conductors each of which serves the two customer meters of each 

duplex.” However, the SCE engineer in charge of the project upgraded a distribution 
12

conductor to size 1/0 although he knew that a size 4/0 was required to operate the solar 

generating systems on the property. Davis alleges that SCE then improperly billed Davis 

for removing the 1/0 conductor and installing the necessary 4/0 conductor.

The ninth cause of action, similar to the fifth cause of action, alleges that SCE 

inconsistently applied the definitions of “Interconnection Facility” and “Distribution 

Service,” in violation of Rule 21, section H and the Public Utilities Code.

4. Sixth Cause of Action for Overbilling on CREST Applications

In January 2012 Davis submitted to SCE 12 interconnection applications pursuant 

to Rule 21 seeking to interconnect solar generating systems at his home and rental units 

to SCE’s electricity grid. The applications proposed to sell the excess electricity to SCE

and made clear that they were not submitted under the NEM program. However, Davis’s 

applications stated he was interested in more than one possible tariff under which to sell 

excess power. SCE deemed Davis’s applications incomplete because they failed to 

specify a single tariff. In response, Davis selected the CREST program. Davis alleges 

that SCE did not take action on his 12 CREST applications from January to June 2012.

Davis alleges in the sixth cause of action that SCE charged him excessive fees for 

approval of his solar generating systems under the CREST program. Specifically Davis 

alleges that SCE should have reduced the fees for his “atypical” application. Under 

Rule 21, section C.1.b(5) [E.3.a(iv)], an “applicant may propose and SCE may agree to 

reduced costs for reviewing atypical applications, such as Applications submitted for 

multiple generators, multiple sites and otherwise as conditions warrant.” SCE 

acknowledged to Davis in writing that his applications were “atypical” because they were 

for smaller 18 kW residential applications as compared to “typical” non-NEM 

applications for large or industrial projects ranging from 250 to 3000 kWs. However, 

SCE denied Davis’s request to reduce the costs SCE charged him for his applications.

Davis also alleges that SCE overcharged him by requiring that one study be 

prepared for each solar generating system instead of performing one study for each of his

multi-unit properties. Davis alleges that at each property, every unit had an individual 
13

customer electric meter, but each property was served by a “single distribution conductor 

and a single SCE transformer,” so the studies would be identical for each solar generating 

system on the property. SCE rejected Davis’s proposals and assessed fees of $61,400 per 

electric meter for a total of $491,200 for the eight units at 65911 29 Palms Highway and 

$245,600 for the four units on Alta Loma.

5. Seventh and Eighth Causes of Action for Unlawful Approval of Coronus

 Energy Corporation’s CREST Application

Davis alleges that SCE offered preferential treatment to a commercial solar power

generator, Coronus Energy Corporation (Coronus), which resulted in SCE’s denial of 

Davis’s CREST applications.

10

a. Coronus’s Applications

At the same time Davis’s CREST applications were pending, SCE was negotiating 

with Coronus on its applications for commercial solar farms. The farms were “just a few 

hundred yards away from each of [Davis’s] premises,” and were served by the same 

portion of SCE’s electricity grid as the Davis properties. Coronus’s interest in 

interconnection for its solar farm project was predicated on entering into a CREST 

agreement with SCE. Coronus’s corporate filing with the Securities and Exchange 

Commission made clear that Coronus only intended to operate the projects if it could do 

so under CREST.

As of 2012, the CREST program was nearing its end because it was close to being

oversubscribed. SCE continued to process Coronus’s applications to interconnect its

solar projects to the electricity grid until the transmission and distribution lines became 

 

10 Davis also alleges as part of his sixth cause of action that SCE charged Coronus 

lower fees for its application. Specifically, according to Davis, SCE charged Coronus 

only $11,400 for the studies necessary to approve interconnection of a 1500 kW 

generator to the electricity grid. By contrast, SCE charged Davis $61,400 for studies on a 

single 18 kW solar generator.
14

oversubscribed. Effective July 24, 2013, SCE met its obligation to purchase the required 

amount of eligible generation under CREST and the CREST program closed to new 

customers.

Davis contends that SCE, by processing Coronus’s applications and placing 

Coronus in the “queue” for approval ahead of Davis, prevented Davis from having his 

applications approved prior to the closing of the CREST program. According to Davis, 

“[b]oth the costs of interconnection, and the availability of CREST are limited by ‘queue’ 

systems where each entry into the ‘queue’ makes subsequent entry by others either more 

expensive, more difficult, or impossible.”

At the heart of Davis’s claims is the allegation that Coronus was not eligible for 

the CREST program because of the size of its projects. Under section 399.20 and the 

CREST program, only generating facilities under 1.5 megawatts can participate in the

program. Davis alleges that Coronus’s projects were larger than 1.5 megawatts, 

including one that was 7.5 megawatts and two that were 4.5 megawatts. Davis alleges 

that SCE was able to circumvent the 1.5 megawatt restriction by using a procedure called 

“daisy chaining.” According to Davis, “‘[d]aisy chaining’ is splitting one large project 

into several smaller ones for the purpose of evading maximum size limitations.”

Davis alleges that on May 24, 2012 in Decision 12-05-035, the PUC specifically 

prohibited “daisy-chaining” to evade project size limitations. This decision is attached as 

exhibit 4 to SCE’s request for judicial notice.11 The PUC finds in this decision, with 

 

11 On September 11, 2014 SCE filed a request for judicial notice of 19 documents. 

First, “SCE requests that the Court take judicial notice of six documents that were not 

previously presented to the Trial Court,” which are attached as exhibits one through six. 

We grant the request as to exhibits one through three, which are documents filed in 

Davis’s PUC proceeding, including a “Scoping Memo and Ruling” regarding how the 

PUC proceeding would proceed (Exhibit 1), the Second Amended Complaint dated June 

19, 2014 filed with the PUC (Exhibit 2), and a transcript of an evidentiary hearing before 

Administrative Law Judge Jeanne McKinney on August 18, 2014 (Exhibit 3). We also 

grant SCE’s request for judicial notice of Exhibits 4 and 5, which are PUC decisions 

relating to other projects, which address the “daisy-chaining” procedure. However, we 
15

respect to a different solar program: “[w]e agree . . . that additional measures must be 

taken to prevent daisy-chaining and agree with the concerns raised regarding daisychaining to evade the project size restrictions.”

On August 30, 2012 SCE entered into CREST agreements with Coronus, even 

though the PUC had two months earlier prohibited “daisy chaining.” Davis alleges that 

once SCE agreed that his interconnection applications were eligible for CREST, Coronus 

“had used up all of the available capacity on the distribution and transmission lines in our 

area and interconnection would have entailed years of delay and prohibitive cost.” 

Davis also alleges that SCE violated its Rule 16 on “Service Extensions” by 

approving the Coronus application because the tariff provides that no more than one 

service may be supplied to “a single enterprise on a single premise.” By contrast, SCE 

rejected one of Davis’s CREST applications on the basis that Rule 16 prohibited more 

than one service to a single premise.

 

deny SCE’s request for judicial notice of Exhibit 6, a PUC decision regarding SCE’s 

Tariff Rule 22 for lack of relevance.

We take judicial notice of exhibits one through five as administrative records of 

the PUC. (Evid. Code, §§ 452, subd. (c), 459, subd. (a); Hartwell, supra, 27 Cal.4th at 

p. 286, fn. 4 [taking judicial notice of PUC orders issued after filing of the Court of 

Appeal opinion]; Associated Builders & Contractors, Inc. v. San Francisco Airports 

Com. (1999) 21 Cal.4th 352, 375, fn. 4. [court may take judicial notice of administrative 

agency records]; PG&E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 

1220, fn. 38 [“briefs filed . . . in rulemaking proceedings before the PUC” judicially 

noticed under Evid. Code, §§ 452, subd. (c), 459].) We take judicial notice of the 

documents for the purpose of determining the procedural posture of this case before the 

PUC, but “‘“we do not take judicial notice of the truth of all matters stated therein.”’” 

(People v. Castillo (2010) 49 Cal.4th 145, 157.)

The request for judicial notice also asks that this court take judicial notice of 13 

documents that were before the trial court and are included in the Joint Appendix. This

request is denied as unnecessary because the documents were part of the record before 

the trial court and are included in the record on appeal. (Navellier v. Sletten (2002) 29 

Cal.4th 82, 87, fn. 5)
16

b. Allegations Relating to Approval of the Coronus Applications

The seventh cause of action alleges that SCE breached its duty to apply its tariffs, 

including Rule 21, uniformly to all customers, specifically alleging preferential treatment 

for Coronus.

The eighth cause of action alleges SCE unlawfully allowed Coronus to “daisy 

chain” its projects and thereby occupy space in both the CREST queue and the 

interconnection queue for projects larger than 1.5 megawatts. Davis alleges that SCE’s 

approval of Coronus’s application violated section 399.20, the CREST tariff, Rule 16, 

and the PUC’s decision on daisy-chaining (No. 12-05-035).

D. SCE’s Demurrer and the Trial Court’s Ruling

On January 17, 2014 SCE demurred to all nine causes of action on the grounds 

that: (1) the superior court lacked subject matter jurisdiction to hear the action because

Rule 21, section K.1. grants “initial jurisdiction” to the PUC “to interpret, add, delete or 

modify any provision of this Rule or any agreement entered into between Distribution

Provider and Applicant or Producer to implement this tariff . . .and to resolve disputes 

regarding Distribution Provider’s performance of its obligations under Commissionjurisdictional tariffs, the applicable agreements, and requirements related to the 

interconnection of Applicant’s or Producer’s Generating Facility or Interconnection 

Facilities pursuant to this Rule”; (2) the complaint is barred under section 1759; (3) the 

complaint is barred because Davis failed to exhaust mandatory dispute resolution 

procedures in Rule 21, section K; and (4) at a minimum, the action should be stayed and 

the claims referred to the PUC under the primary jurisdiction doctrine.

On March 28, 2014 the trial court sustained SCE’s demurrer without leave to 

amend, holding that it was without jurisdiction to hear Davis’s claims. The trial court 

found that “[e]ach of [Davis’s] claims arises from a dispute regarding [his] request to

interconnect his power system to [SCE’s] power grid.” Further, the court held that

Rule 21 provided a dispute resolution process that, in section K.1., provides “that the 

Commission has initial jurisdiction to resolve disputes regarding the distribution
17

provider’s performance of its obligations under Commission-jurisdictional tariffs.” The 

court also held that “[t]he [PUC] has exclusive jurisdiction over the regulation and 

control of utilities, and once it has assumed jurisdiction, it cannot be hampered, interfered 

with, or second-guessed by a concurrent superior court action addressing the same issue.” 

Finally, the court found that the “action would interfere with [the PUC’s] initial 

jurisdiction to resolve the dispute.” On these bases, the court sustained SCE’s demurrer. 

The court also found that “[i]t is not reasonabl[y] possible for [Davis] to correct the 

defect that the Court lacks jurisdiction to hear his claims by amendment,” and denied 

leave to amend.

The trial court entered a judgment of dismissal without prejudice on June 10, 

2014.

E. Davis’s Complaints Filed with the PUC

Before filing this action, Davis filed two formal complaints with the PUC relating 

to his attempts to interconnect his solar generating systems to SCE’s electricity grid. The 

first complaint was filed on August 23, 2012. In the complaint, Davis alleges that SCE 

violated section 2827, subdivision (c)(1), “by wrongly refusing to make the [NEM] tariff 

available for the purpose of interconnecting enough solar generating capacity to meet the 

electrical requirements of an electric vehicle charging station at [Davis’s] residence, and

. . . at any of [his] other properties . . . .”

Davis filed his second complaint with the PUC in November 2013. The second 

complaint alleges that SCE refused to approve some of his applications for solar 

generating systems at his 20 properties under the NEM program and required that Davis 

reduce the size of the systems to obtain CSI incentive funds. At some point the two 

complaints were consolidated into one proceeding.

On May 28, 2014 PUC Commissioner Michael Peevey and Administrative Law 

Judge Jeanne McKinney issued a “Scoping Memo and Ruling” (scoping memo) that sets 

forth the scope of the consolidated proceedings on the first two complaints. The scoping 

memo describes Davis’s complaints as alleging that SCE “has violated [section] 2827[, 
18

subdivision] (c)(1) by refusing to allow some of Davis’s projects to interconnect under 

SCE’s NEM tariff and by refusing to pay CSI incentives for some of the projects. SCE 

asserts that the projects are sized too large to qualify for the programs.” (Fn. omitted.)

The scoping memo calls for evidentiary hearings on the factual issues raised and 

briefing on the legal issues. The scoping memo sets forth four issues for legal briefing, 

including a number of technical issues relating to the NEM program. For example, one 

legal issue is described as the question: “Can the annual estimated generation for 

purposes of NEM generating facility size requirements be calculated using the 

manufacturer’s inverter efficiency rate for situations involving high panel to inverter 

ratios?” One of the three issues listed as requiring an evidentiary hearing is the 

following: “If Davis installs solar panels at properties he rents to tenants, resulting in 

electricity used not by Davis but by his tenants, does the installation still ‘offset 

customer’s own electrical requirements’ such that the project can qualify for NEM under 

[section] 2827[, subdivision] (b)(4)?”

In its scoping memo, the PUC set a schedule for the proceeding, including legal 

briefing, testimony and issuance of a decision on the first two complaints by

November 22, 2014, as well as the beginning of Phase 2 relating to the claims alleged in 

this action.

In June 2014, following the trial court’s ruling sustaining SCE’s demurrer, Davis 

filed a second amended complaint in the consolidated PUC proceeding, which alleges

each of the claims set forth in his superior court complaint. The second amended 

complaint provides: “Other than minor formatting changes, Part Two is identical to the 

complaint dismissed by the superior court.”

Judge McKinney held an evidentiary hearing on Davis’s consolidated proceeding

on August 18, 2014. At the hearing SCE sought a stay of the “Part 2 claims,” referring to 

the claims that are at issue in this appeal. According to the record, Judge McKinney 

discussed this request with the parties and stated: “While we were off the record we 

determined that it makes sense to essentially hold the Part 2 claims until we get the 
19

results of Mr. Davis’s appeal.” Accordingly, the pending PUC proceeding has been 

stayed until resolution of this appeal.

DISCUSSION

A. Standard of Review

“In determining whether plaintiffs properly stated a claim for relief, our standard 

of review is clear: ‘“We treat the demurrer as admitting all material facts properly 

pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We 

also consider matters which may be judicially noticed.” [Citation.] Further, we give the 

complaint a reasonable interpretation, reading it as a whole and its parts in their context. 

[Citation.] When a demurrer is sustained, we determine whether the complaint states 

facts sufficient to constitute a cause of action. [Citation.] And when it is sustained 

without leave to amend, we decide whether there is a reasonable possibility that the 

defect can be cured by amendment: if it can be, the trial court has abused its discretion 

and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] 

The burden of proving such reasonable possibility is squarely on the plaintiff.’ 

[Citations.]”

12 (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126; accord, 

Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571 [“the judgment 

here must be affirmed unless plaintiffs can show that the complaint falls outside the scope 

of the PUC’s jurisdiction or that the litigation will not interfere with the PUC’s exercise 

of its authority”].) “A demurrer is proper in cases in which the plaintiff is not able to 

state a cause of action which is within the subject matter jurisdiction of the court.” 

(Schell v. Southern Cal. Edison Co., supra, 204 Cal.App.3d at p. 1047.)

 

12 Davis does not seek leave to amend. We find the trial court properly denied leave 

to amend because Davis presented no facts to suggest he could amend his complaint to 

avoid exclusive jurisdiction in the PUC.
20

B. The PUC Has Exclusive Jurisdiction Over Regulation and Control of Public 

Utilities

“‘The commission [PUC] is a state agency of constitutional origin with farreaching 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.’” (Covalt, supra, 13 Cal.4th at pp. 914-915; accord, Hartwell, supra, 27 

Cal.4th at p. 264.)

Further, under the Public Utilities Act, the PUC has “broad authority to ‘supervise 

and regulate every public utility in the State’ (§ 701) and grants the commission 

numerous specific powers for the purpose. . . . [T]he Legislature further authorized the 

commission to ‘do all things, whether specifically designated in [the Public Utilities Act]

or in addition thereto, which are necessary and convenient’ in the exercise of its 

jurisdiction over public utilities. [Citation].” (Covalt, supra, 13 Cal.4th at p. 915.)

Among these powers, the PUC has the power to issue equitable relief, including 

injunctive relief and reparations to ratepayers, as well as to assess fines and penalties. 

(§§ 734, 2107; Wise v. Pacific Gas & Electric Co. (1999) 77 Cal.App.4th 287, 299.) 

However, as SCE acknowledges, the PUC’s authority to order reparations to aggrieved 

ratepayers is limited to reparations for rates that are “unreasonable, excessive, or 

discriminatory” (§ 734) ; the PUC does not have authority to award other damages. (Cal. 

Const., art. XII, § 4; Wise, supra, at p. 299.)

As part of its grant of broad power to the PUC, “the Legislature has chosen to 

limit the jurisdiction of judicial review of the PUC’s decisions.” (Hartwell, supra, 27 

Cal.4th at p. 265.) Specifically, section 1759, subdivision (a), 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.”
21

We next turn to the limits on judicial review of utility actions.

1. The courts have applied the Covalt test to determine whether the PUC has

 exclusive jurisdiction over damage actions against public utilities.

The courts have attempted to reconcile the limits on judicial review in section 

1759 with the grant of jurisdiction to the superior court under section 2106. Section 2106 

provides: “Any public utility which does, causes to be done, or permits any act, matter, 

or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing 

required to be done, either by the Constitution, any law of this State, or any order or 

decision of the commission, shall be liable to the persons or corporations affected thereby 

for all loss, damages, or injury caused thereby or resulting therefrom. If the court finds 

that the act or omission was willful, it may, in addition to the actual damages, award 

exemplary damages. An action to recover for such loss, damage, or injury may be 

brought in any court of competent jurisdiction by any corporation or person.”

Our Supreme Court first considered how to reconcile these two sections in the 

leading decisions of Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 4 (Waters) and 

Covalt, supra, 13 Cal.4th at pp. 917-918. As the court held in Covalt, citing to Waters, 

“[a]ddressing the question of statutory construction, this court declared the primacy of 

section 1759 and the correspondingly limited role of section 2106. The court held that ‘in 

order to resolve the potential conflict between sections 1759 and 2106, the latter section 

must be construed as limited to those situations in which an award of damages would not 

hinder or frustrate the commission’s declared supervisory and regulatory policies.’ 

[Citation.]” (Covalt, supra, at pp. 917-918, quoting Waters, supra, at p. 4.)

The court in Covalt held further, “‘[t]he PUC has exclusive jurisdiction over the 

regulation and control of utilities, and once it has assumed jurisdiction, it cannot be 

hampered, interfered with, or second-guessed by a concurrent superior court action 

addressing the same issue.’ [Citation.]” (Covalt, supra, 13 Cal.4th at p. 918, fn. 20.) 

Moreover, “[u]nder the Waters rule, accordingly, an action for damages against a public 

utility pursuant to section 2106 is barred by section 1759 not only when an award of 
22

damages would directly contravene a specific order or decision of the commission, i.e., 

when it would ‘reverse, correct, or annul’ that order or decision, but also when an award 

of damages would simply have the effect of undermining a general supervisory or 

regulatory policy of the commission, i.e., when it would ‘hinder’ or ‘frustrate’ or 

‘interfere with’ or ‘obstruct’ that policy.” (Id. at p. 918, fn. omitted.)

Under this theory, the court in Waters found that an action for damages resulting 

from telephone service interruptions caused by the utility’s negligence was barred by 

section 1759 because the plaintiff sought damages in excess of the utility’s tariff. The 

court held that allowing the suit to proceed would thwart the PUC’s “general policy” of 

limiting liability of telephone utilities for ordinary negligence. (Waters, supra, 12 Cal.3d 

at pp. 10-11.)

In Covalt, the court held that section 1759 barred a superior court action for 

damages allegedly caused by electric and magnetic fields from power lines operated by a 

public utility. In reaching this holding, the court established a three part test: (1) whether 

the PUC had the authority to adopt a regulatory policy; (2) whether the PUC had 

exercised that authority; and (3) whether the superior court action would hinder or 

interfere with the PUC’s exercise of its regulatory authority. (Covalt, supra, 13 Cal.4th at 

pp. 923, 926, 935; accord, Hartwell, supra, 27 Cal.4th at p. 266; Anchor Lighting v. 

Southern California Edison Co. (2006) 142 Cal.App.4th 541, 549.)

Applying this test, the court in Covalt found that the PUC possessed the authority 

to regulate matters relating to electromagnetic fields around power lines; the PUC had 

exercised its authority to adopt policies reflecting its finding that it lacked sufficient 

information to decide whether the fields were dangerous; and a civil action would 

interfere with and hinder the ongoing regulatory efforts of the PUC. (Covalt, supra, 13 

Cal.4th at p. 935.)

In Hartwell, our Supreme Court applied Covalt’s three-part test in finding that 

some of the plaintiffs’ claims were barred under section 1759 in a civil action alleging 

that water utilities had provided them unsafe drinking water. (Hartwell, supra, 27 

Cal.4th at pp. 275-278.) Specifically, the court found that the challenge to the adequacy 
23

of the drinking water standards was barred because it would interfere with a “‘broad and 

continuing supervisory or regulatory program’ of the [PUC] . . . .” (Id. at pp. 275, 276.)13

However, the court held that the plaintiffs could proceed on a theory that the drinking 

water failed to meet the federal and state drinking water standards because the claims

would not interfere with the PUC’s regulatory policy that water utilities comply with the

standards. (Ibid.)

Other courts since Covalt have found civil actions barred under section 1759 

where the action would interfere with the PUC’s authority or policies. (See e.g., 

Guerrero v. Pacific Gas & Electric Co., supra, 230 Cal.App.4th at pp. 576-577 [§ 1759 

barred civil suit following pipeline explosion alleging utility misappropriated $100 

million in ratepayer money that should have been spent on pipeline safety because 

lawsuit would interfere with PUC’s ongoing administrative proceedings following the 

explosion]; Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th 225, 242-243 

[lawsuit alleging excessive tree trimming by utility around power lines above minimum 

standards set by PUC found within exclusive jurisdiction of PUC]; Anchor Lighting v. 

Southern California Edison Co., supra, 142 Cal.App.4th at pp. 549-550 [§ 1759 barred 

civil suit by commercial business against SCE for refusal to provide it 10 percent 

discount provided to other commercial customers]; Schell v. Southern Cal. Edison Co., 

supra, 204 Cal.App.3d at pp. 1042-1043, 1045-1046 [§ 1759 barred suit against utility by 

owner of recreational vehicle park alleging discrimination by utility for charging him 

commercial electricity rate where determination of appropriate rate was properly in 

exclusive purview of PUC].)

This district in Anchor Lighting addressed issues similar to those raised in this 

case. The court found that Anchor’s lawsuit would interfere with the PUC’s ratemaking 

function because determination of whether Anchor was entitled to the 10 percent discount 

 

13 As to the preempted claims against the utilities, the court affirmed the Court of 

Appeal’s holding that the trial court erred in staying the proceedings instead of ruling on 

the preemption issue. (Hartwell, supra, 27 Cal.4th at pp. 264, 282-283.)
24

would require an analysis of whether Anchor’s peak energy demand would qualify it as a 

“small commercial customer” under SCE’s tariff. (Anchor Lighting v. Southern 

California Edison Co., supra, 142 Cal.App.4th at pp. 545, 550 & fn. 3.)

Similarly, in Schell, our colleagues in the Fourth District found that the PUC had 

exclusive jurisdiction over a lawsuit raising the question of whether a recreational vehicle 

park should be charged electricity rates applicable to mobile home parks or other 

domestic or commercial rates pursuant to an SCE tariff. (Schell v. Southern Cal. Edison 

Co., supra, 204 Cal.App.3d at p. 1046.) The court found that this determination “is 

clearly within the exclusive purview of the PUC as part of its continuing jurisdiction over 

rate making and rate regulation . . . .” (Ibid.) The court in Schell noted, as here, that the 

issues raised in the plaintiff’s case were pending in three separate cases before the PUC. 

(Ibid.)

Moreover, the court addressed the ability of the plaintiff to recover on his 

discrimination claims: “His counts relating to damages, injunctive, and other relief for 

Cal. Ed.’s alleged discrimination against him . . . will not be ripe until the PUC and the 

Supreme Court have made a final determination as to whether or not the DMS-II 

schedule [for mobile home parks] applies to him. Thus, none of the causes of action in 

plaintiff’s amended complaint are properly before the court at this time.” (Schell v. 

Southern Cal. Edison Co., supra, 204 Cal.App.3d at p. 1047.)14

By contrast, in cases where the courts have found that the PUC does not have 

exclusive jurisdiction, the lawsuits have typically not required interpretation of PUCapproved rules. (See, e.g., People ex rel. Orloff v. Pacific Bell, supra, 31 Cal.4th at 

p. 1145 [court had jurisdiction over false advertising claims brought by district attorneys 

where suit would not undermine PUC policy or interfere with its regulatory authority]; 

Mata v. Pacific Gas & Electric Co. (2014) 224 Cal.App.4th 309, 320 [lawsuit by heirs of 

decedent who was electrocuted by a power line while trimming a tree not barred, finding 

 

14 The decision in Schell was cited approvingly by our Supreme Court in Covalt. 

(Covalt, supra, 13 Cal.4th at pp. 921-923.)
25

that damage action “complements and reinforces” utility rule requiring utility to exercise 

reasonable care in trimming trees to ensure that its power lines are safe];15 Cundiff v. 

GTE California Inc. (2002) 101 Cal.App.4th 1395, 1411 [damage action against utility 

for deceptive billing disclosure practices not barred by § 1759]; Wise v. Pacific Gas & 

Electric Co., supra, 77 Cal.App.4th at p. 295 [finding no exclusive jurisdiction over 

unfair competition and fraud claims alleging utility failed to replace old valves after 

charging ratepayers for the cost of its replacement program because lawsuit would not 

interfere or otherwise impede any PUC regulatory policy]; Cellular Plus, Inc. v. Superior 

Court (1993) 14 Cal.App.4th 1224, 1246 [allowing civil suit against two cellular 

telephone service companies under Cartwright Act for price fixing, finding that suit 

would not “‘hinder or frustrate’” the PUC’s supervisory or regulatory powers].)

This district in Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 

123 recently considered the impact of section 1759 on a lawsuit concerning stray voltage 

from SCE’s electricity grid. In Wilson, the court held that the PUC did not have 

exclusive jurisdiction over the plaintiff’s damage action for harm caused by stray voltage 

from the SCE electricity grid, holding: “In light of the absence of any indication that the 

PUC has investigated or regulated the issue of stray voltage, and without any evidence 

that stray voltage cannot be mitigated without violating the PUC’s regulation requiring 

grounding, we cannot say that Wilson’s lawsuit would interfere with or hinder any 

supervisory or regulatory policy of the PUC.” (Id. at p. 151.)

 

15 Both Mata and Sarale involved actions against utilities for their tree trimming 

practices. The First District in Mata distinguished the Third District ruling in Sarale on 

the basis that Mata involved whether the utility company used reasonable care in keeping 

its power lines safe above the minimum mandated by the PUC; Sarale involved a claim 

by landowners that the utility company trimmed the trees beyond what was mandated by 

the PUC rule. (See Mata v. Pacific Gas & Electric Co., supra, 224 Cal.App.4th at 

pp. 319-320; Sarale v. Pacific Gas & Electric Co., supra, 189 Cal.App.4th at p. 242.) 

The court in Mata noted that “recognition of the landowners’ claims [in Sarale] would 

have effectively countermanded the authorization that the PUC granted the utility to 

make that determination and to extend clearance beyond the minimum when necessary to 

ensure service reliability or public safety.” (Mata, supra, at p. 319.)
26

Davis relies heavily on Vila v. Tahoe Southside Water Utility (1965) 233 

Cal.App.2d 469 and Cundiff v. GTE California Inc., supra, 101 Cal.App.4th 1395 to

support his position that section 2106 authorizes “[t]he ‘full power of the courts to pass 

judgment on what utilities do.’” Both cases are distinguishable.

In Vila, a customer sued a water company for its failure to provide water service, 

causing the building to be vacant. Significantly, the court found that the utility had “an 

unambiguous provision in its own rules” that required the provision of water and that the 

suit would therefore be “in aid and not in derogation of the jurisdiction of the 

commission.” (Vila v. Tahoe Southside Water Utility, supra, 233 Cal.App.2d at p. 479.) 

Further, the court held: “To deny a plaintiff access to the courts for redress of such a 

wrong [no water service] would be a gross injustice.” (Ibid.)

Similarly, in Cundiff, this court allowed a lawsuit to proceed against telephone 

companies that allegedly had been deceptively charging customers hidden phone rental 

charges. (Cundiff v. GTE California Inc, supra, 101 Cal.App.4th at pp. 1406-1407). The 

court affirmed the limits imposed by section 1759, holding that “[s]ection 1759 defines 

and limits the power of courts to pass judgment on, or interfere with, what the [PUC] 

does.” (Id. at p. 1405.) However, the court found that the plaintiffs were not challenging 

the companies’ rates, but only their billing practices, and thus “would not have the effect 

of reversing, correcting or annulling any decision or order of the commission . . . .” (Id. 

at p. 1411.)

We next turn to application of the Covalt test to Davis’s claims.

2. The Covalt test supports a finding of exclusive PUC jurisdiction over 

 Davis’s claims.

Under our Supreme Court’s decision in Covalt, we consider (1) whether the PUC

has the authority to adopt a regulatory policy; (2) whether the PUC has exercised that 

authority; and (3) whether the superior court action would hinder or interfere with the 

PUC’s exercise of regulatory authority. (Covalt, supra, 13 Cal.4th at pp. 924, 926, 935;

accord, Hartwell, supra, 27 Cal.4th at p. 266.)
27

First, it is undisputed that the PUC has the authority to adopt tariffs governing 

applications to interconnect solar energy generating systems to a utility’s electricity grid. 

Second, the PUC has exercised that authority by its approval of Rule 21, Rule 16, and the 

CREST and NEM programs. The central question here, therefore, is whether Davis’s 

action “would hinder or interfere with the PUC’s exercise of regulatory authority.” 

(Hartwell, supra, 27 Cal.4th at p. 266.) We conclude that it would.

Preliminary, we note that the gravamen of Davis’s action is that SCE has failed to 

comply with Rule 21, Rule 16 and its rules regarding the CREST and NEM programs, all 

of which have been approved by the PUC as part of its regulatory program. In addition, 

each of Davis’s causes of action is currently alleged in the proceeding pending before the 

PUC. We will address each cause of action in turn.

With respect to Davis’s first cause of action for deceit, the alleged 

misrepresentation pertains to the sizing of Davis’s solar generating systems under the 

NEM program, which is precisely the issue raised in Davis’s second complaint before the 

PUC. In order to prove a claim for deceit, Davis will need to show that SCE made a false 

statement of fact to Davis. As our Supreme Court has held: “‘“The elements of fraud, 

which give rise to the tort action for deceit, are (a) misrepresentation (false 

representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); 

(c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting 

damage.”’ [Citation]” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173; 

accord, McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 792.) The tort 

“encompasses ‘[t]he assertion, as a fact, of that which is not true, by one who has no 

reasonable ground for believing it to be true’ . . . . [Citations.]” (Small, supra, at p. 174.)

In order to determine whether SCE made a false statement of fact to Davis 

regarding the sizing of his solar generating systems, the trial court would need to interpret 

the sizing requirements under the NEM and CSI programs, precisely the subject of the 

pending PUC proceeding. This determination could therefore interfere with the PUC’s 

interpretation of the NEM and CSI tariffs.
28

We next turn to Davis’s second through fourth causes of action for SCE’s failure 

to comply with Rule 21’s deadlines for processing his solar generating applications under

the NEM program. As we discuss above, Rule 21 provides that the PUC has “initial 

jurisdiction” over interpretation and implementation of Rule 21 and provides a process 

for dispute resolution and the filing of a complaint with the PUC. The rule’s 

specification that the PUC has “initial jurisdiction” is not determinative of whether the 

PUC has exclusive jurisdiction but is a factor for us to consider in evaluating Davis’s 

claims.

Significant here is the complexity of the determination of whether SCE has 

violated the deadlines set forth in Rule 21. As a threshold matter, different deadlines 

apply depending on whether the proposed projects are “exporting” or “non-exporting” 

facilities under the rule. Further, analysis of SCE’s compliance with the deadlines will 

require interpretation of Davis’s obligations under the rule. While the determination of 

whether SCE provided notice to Davis whether his application was complete within 10 

days, as alleged in the second cause of action, appears straightforward, the other 

deadlines are more complicated.16

For example, the 20-day deadline alleged in the third cause of action for 

completing the initial engineering review runs from the date the application is deemed 

complete, a date subject to interpretation. Similarly, the fourth cause of action alleges 

SCE’s failure to comply with the 30-day deadline to complete the processing of NEM 

interconnection applications, but this provision provides that applications “normally” will 

be processed within 30 business days, specifies what needs to be completed before the 

30-day clock begins to run, and includes many exceptions to the 30-day time period, all 

 

16 While arguably the claims alleged in the second cause of action could be 

determined by the superior court without interfering with the PUC’s authority, we find 

that this deadline claim should be considered as part of the other causes of action for 

violation of deadlines under Rule 21 and therefore also falls within the exclusive 

jurisdiction of the PUC.
29

of which will need to be interpreted with respect to the 20 applications submitted by 

Davis.

The fifth and ninth causes of action allege SCE’s failure to pay for specified 

upgrades under Rule 21 by improperly classifying Davis’s solar generating facility as an 

“interconnection facility” instead of a “distribution facility.” These causes of action will 

likewise require interpretation of Rule 21, a task particularly suited to the PUC.

In causes of action six through eight, the complaint alleges SCE’s unlawful 

implementation of its CREST program. The sixth cause of action challenges how SCE 

calculated the costs for Davis’s solar applications submitted under the CREST program, 

an issue requiring interpretation of Rule 21. Notably, Rule 21 provides only that a 

Distribution Provider “may agree” to reduced costs for atypical interconnection requests. 

It would be up to the PUC to determine whether there are circumstances under which 

SCE should have reduced Davis’s application costs. (See Rule 21, § C.1.b(5)

[E.3.a(iv)].) The seventh and eighth causes of action allege that SCE improperly allowed 

Coronus to “daisy chain” its projects to avoid the size limitations applicable to Rule 21 

and the CREST program and, by allowing Coronus to take a position in the queue ahead 

of Davis, denied him entry into the CREST program.

Resolution of whether “daisy chaining” violates Rule 21 and whether Coronus 

should have been granted approval to participate in the CREST program is precisely what 

the PUC should determine, not the superior court. Indeed, as we discuss above, the PUC 

has already issued a decision that addresses “daisy-chaining” in another context. 

Determination of whether SCE improperly allowed the practice of “daisy-chaining” for 

Coronus’s application as part of its implementation of the CREST program is the type of 

determination best suited to the PUC.

We conclude that each of Davis’s causes of action will require interpretation of 

Rule 21, Rule 16, the CREST program or the NEM program, which determinations 

“would hinder or interfere with the PUC’s exercise of regulatory authority” with respect 

to interconnection of solar generating systems to utility electricity grids. (Hartwell, 

supra, 27 Cal.4th at p. 266.) Indeed, the interpretation of Rule 21, Rule 16, and the 
30

CREST and NEM programs is analogous to the analysis of SCE’s tariffs for “small 

commercial customers” this court found to fall within the exclusive jurisdiction of the 

PUC in Anchor Lighting v. Southern California Edison Co., supra, 142 Cal.App.4th at 

p. 550, and the interpretation of the SCE rate schedule for mobile home parks the Fourth

District found to be in the exclusive jurisdiction of the PUC in Schell v. Southern Cal. 

Edison Co., supra, 204 Cal.App.3d at p. 1046.17

While we affirm the trial court’s judgment sustaining SCE’s demurrer without 

leave to amend, this will not leave Davis without a remedy. The PUC has extensive 

powers to award injunctive relief, reparations and penalties. Further, review of the 

PUC’s ruling is available in the Court of Appeal under section 1759. If Davis receives a 

favorable ruling from the PUC but seeks relief beyond the equitable remedies available to 

the PUC, he will at that time have “ripe” claims to be filed in the superior court.18 (See 

Schell v. Southern Cal. Edison Co., supra, 204 Cal.App.3d at p. 1047.)19

 

17 Because we affirm the trial court’s order finding that the PUC had exclusive 

jurisdiction over Davis’s claims, we do not reach the issue raised by SCE of whether the 

court should have applied the doctrine of exhaustion of administrative remedies or 

primary jurisdiction.

18 As SCE has acknowledged in its brief, “if this Court affirms the Trial Court’s 

ruling that the [PUC] has exclusive, initial jurisdiction to adjudicate Davis’s claims, it 

does not necessarily foreclose a later action for damages in Superior Court.”

19 While the court in Schell does not discuss the concept of ripeness other than to 

find that the plaintiff’s claims “will not be ripe until the PUC and the Supreme Court 

have made a final determination as to whether or not the DMS-II schedule applies to 

him” (Schell v. Southern Cal. Edison Co., supra, 204 Cal.App.3d at p. 1047), other courts 

have addressed the issue of ripeness with respect to review of an agency’s action. (See, 

e.g., Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171, 

174 [challenge to Coastal Commission guidelines for conditions of permit approval not 

ripe where lawsuit did not challenge application of guidelines to specific permit 

approval]; PG&E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1216-

1217, 1222 [challenge to PUC condition applicable to utilities not ripe because PUC had 

not yet applied its interpretation to a concrete set of facts].)

As our Supreme Court held in Pacific Legal Foundation with respect to the 

ripeness doctrine, “its basic rationale is to prevent the courts, through avoidance of 
31

DISPOSITION

The judgment is affirmed. SCE shall recover its costs on appeal.

FEUER, J.*

We concur:

PERLUSS, P. J

ZELON, J.

 

premature adjudication, from entangling themselves in abstract disagreements over 

administrative policies, and also to protect the agencies from judicial interference until an 

administrative decision has been formalized and its effects felt in a concrete way by the 

challenging parties.” (Pacific Legal Foundation v. California Coastal Com., supra, 33 

Cal.3d at p. 171.) In this case, as in PG&E Corp., an action in superior court to challenge 

SCE’s interpretation of Rule 21, Rule 16 and the CREST and NEM programs will only 

become ripe once the PUC has made a final determination, after any appellate review, as 

to its interpretation of those provisions as applied to Davis’s solar applications. (See 

PG&E Corp. v. Public Utilities Com., supra, 118 Cal.App.4th at p. 1217.)

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.