1

Filed 4/29 /15
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

PEGASTAFF, Plaintiff and Appellant,

v. CALIFORNIA PUBLIC UTILITIES COMMISSION, Defendant an d Respondent. A139732
(San Francisco City and County Super. Ct. No. CGC

- 09

- 492995)

PegaStaff is an agency that provides temporary staffing for its clients . A large part of PegaStaff’s business was the provision of staffing to Paci fic Gas & Electric (PG&E), through a staffing agency with which PG&E directly contracted, initially Corestaff Services, LP (Corestaff) and later Agile 1. The California Public Utilities Commission (CPUC) adopted General Order 156 to implement Public Utili ties Code 1 sections 8281 through 8286 (Article 5)
, 2 the purpose of which is to encourage and dev elop the use of women, minority and disabled veteran

owned business enterprises (WMDVBEs) within the public utility sector. PegaStaff is
not a WMDVBE an d after PG&E adopted a program to increase the utilization of WMDVBEs, its provision of staff to PG&E was substantially reduced.

1 Unless otherwise indicated, further statutory citations are to the Public Utilities Code.

2 Sections 8281 through 8286 comprise article 5 of chapt er 7 of the Public Utilities Code.2

PegaStaff filed suit against the CPUC, PG&E, Corestaff and Agile 1. Its claims against the CPUC consisted of constitutional challeng e s to Article 5 and General Order
156. The trial court determined that it did not have subject matter jurisdiction to consider PegaStaff’s constitutional challenges, granted the CPUC’s motion for judgment on the pleadings
, and entered judgment in favor of the CPUC

. The trial court also denied PegaStaff’s motion to transfer its claims against the CPUC to the Court of Appeal. On appeal, 3 PegaStaff maintains that the trial court has subject matter jurisdiction to hear its claims against the CPUC . PegaStaff also argues that if the trial court did not err on the jurisdictional issue, then it erred by denying the motion to transfer. We find no merit in PegaStaff’s arguments and affirm.
BACKGROUND 4
The CPUC is a n agency created by the California Constitution to regulate privately owned public utilities such as PG&E. (Cal. Const., art. XII.) PegaStaff is a division of PegaSoft Corporation, a California corporation
, that provides temporary staffing in the fields of information technology and engineering

. Ma rk Arshinkoff, a white male, owns 100 percent of PegaSoft stock. For nine years prior to filing suit, PegaStaff provided contract labor to PG&E through a program administered by Corestaff , another staffing company. PegaStaff’s placement of workers at P G&E peaked in 2007 at about 40 workers. In that year, PegaStaff received about 400 job orders and revenue of about $4.5 million from PG&E. The revenue from PG&E comprised about 50 percent of PegaStaff’s gross revenues for the year. In October 2007, at the direction of PG&E, Corestaff created a tier structure whereby all WMDVBEs were placed in the first tier and all other businesses, such as

3 PegaStaff’s claims against PG&E, Corestaff and Agile 1 are not at issue in this appeal.

4 Because this appeal is from a judgment on the pleadings, we state facts concerning PegaStaff and its transactions with the de fendants as alleged in the complaint. ( DiPirro v. American Isuzu Motors, Inc. (2004) 119 Cal.App.4th 966, 972.)3

PegaStaff, were placed in the second tier. First tier businesses received preference in job orders for temporary workers. Corestaff created the tiered system because its contract with PG&E required it to spend a substantial percentage of its purchasing/contracting
dollars on WMDVBEs

. T he number of PG&E job orders routed to PegaStaff dropped substantially as a

co nsequence of the tier structure. Many contingent workers placed by PegaStaff were
transferred to WMDVBEs by Corestaff , to PegaStaff’s financial detriment. Between January and September 2009, PegaStaff received only one job order for PG&E from
Corestaff a nd employed only four temporary workers at PG&E. In 2010, defendant Agile 1 replaced Corestaff as the administrator of PG&E’s contingent worker program. On September 29, 2009, PegaStaff filed suit. The operative first amended complaint (FAC) was filed on September 5, 2012, naming PG&E, Corestaff, Agile 1 and
the CPUC as defendants. The FAC assert s 10 causes of action: (1) violation of Civil Code section 51.5 (barring discrimination by businesses based on enumerated characteristics), asserted against Corestaff and PG&E; (2) violation of California
Constitution
, article I, section 31 (barring discrimination by the state based on race, sex, color, ethnicity or national origin in the operation of publ ic employment, public education or public contracting), asserted against the CPUC; (3) violation of the equal protection
clause of the California C onstitution (Cal. Const., art. I , § 7), asserted against the CPUC; (4) injunctive relief for violation of California’s unfair competition law (UCL) (Bus. &
Prof. Co de, § 17200 et seq.), asserted against Corestaff and PG&E; (5) intentional interference with prospective economic advantage, asserted against PG&E; (6) negligent interference with prospective economic advantage, asserted against PG&E; (7) civil conspiracy, asserted against Agile 1; (8) intentional interference with prospective economic advantage, asserted against Agile 1; (9) negligent interference with prospective economic advantage, asserted against Agile 1; and (10) violation of the UCL, asserted against Agile 1. PegaStaff sought, among other relief, a declaration that Article 5 and
General Order 156 are “unconstitutional, invalid, unenforceable and void, both on their face and as applied here.”4

On May 13, 2013, the CPUC filed a motion for judgment on the pleadings, asserting that section 1759 deprive s the superior court of subject matter jurisdiction over PegaStaff’s two claims asserted against it. PegaStaff opposed CPUC’s motion but eight days before the hearing set for that motion moved for transfe r to this court, should the trial court determine that it lacked jurisdiction. A hearing on the parties’ motions, as well as other matters, was held on July 11,
2013. At the hearing, the trial court stated that the CPUC’s motion for judgment on the ple adings would be granted

. The court also denied as untimely PegaStaff’s motion to transfer. On July 15, 2013, the court filed an order formally making the rulings that it stated at the hearing. It granted the motion based on section 1759, concluding that it “lacks jurisdiction to review constitutional challenges to Sections 8281

- 8286 because it would interfere with Defendant CPUC’s job duties” and lacks jurisdiction to hear constitutional challenges to General Order 156 because it “lacks jurisdiction to r eview, reverse, correct, or annul any order or decision of the commission.”
T he court entered judgment in favor of the CPUC on July 15, 2013 . PegaStaff timely filed a notice of appeal on September 11, 2013.
DISCUSSION The primary issue in this appea l is whether the trial court has subject matter jurisdiction over PegaStaff’s constitutional claims against the CPUC. We conclude that the court correctly determined that it lack s jurisdiction. Also at issue is whether the trial court erred in denying Pe gaStaff’s motion to
transfer to this court. We conclude that there was no error because the trial court did not
abuse its discretion.
I. The Superior Court Correctly Held That It Lacked Jurisdiction Over Pega S taff’s Claims Against T

he CPUC

. We review a trial court’s ruling on a motion for judgment on the pleadings de novo. ( Smiley v. Citibank (1995) 11 Cal.4th 138, 145

- 146.) We treat as true “ ‘all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ” ( DiPi rro v. American Isuzu Motors, Inc. , supra, 119 Cal.App.4th at p. 972.)5

Further, “[w]hether the superior court has subject matter jurisdiction over an action . . . [against] the [CPUC] is a question of law we independently review.” Disenhouse v. Peevey (2014) 226 Cal.App.4th 1096, 1102.
A. The Constitution , T

he CPUC A nd The Legislative Scheme
The California Constitution establishes the CPUC and charges it with certain functions. (Cal. Const., art. XII
, §§ 1

- 8

. ) As relevant here, the Constitution pro vides that

t he CPUC “ may fix rates, establish rates, examine records, issue subpenas, administer oaths, take testimony, punish for contempt, and prescribe a uniform system of accounts for all public utilities subject to i ts jurisdiction.” ( Id

. , § 6.) It also provides that “[s]ubject to statute and due process, the [CPUC] may establish its own procedures.” ( Id

. , § 2

. ) The Constitution also provides that public utility companies 5 are “subject to control by the Legislature. ” ( Cal. Const., art. XII, § 3

. ) Further, it confers on t he Legislature “ plenary power, unlimited by the other provisions in this constitution but consistent with this article, to confer additional authority and j urisdiction upon the [CPUC and] to establish the manner and scope of revi ew of commission action in a court
of record

. . . . ” ( Id

. , § 5.) The Legislature used this power to en act the Public Utilities Act (§ 201 et seq.) and many other statutes comprising the Public Utilities Code , including s ection 701
, which confers expan sive authority on the CPUC: “The commission may supervise and regulate every public utility in the State and may do all things, whether specifically designated in [the Public Utilities Act] or in addition thereto, which are necessary and
convenient in the exercise of such power and jurisdiction.” The Public Utilities Code
also includes Article 5
, encouraging the procurement of goods and services by public

5 The Constitution defines as public utilities “[p]rivate corporations and persons that own, operate, control, or manage a line, plant, or sys tem for the transportation of people or property, the transmission of telephone and telegraph messages, or the production, generation, transmission or furnishing of heat, light, water, power, storage or wharfage directly or indirectly to or for the public, and common carriers

. . . .” (Cal. Const., art. XII, § 3.)6

utilities and their contractors from WMDVBEs. Article 5 declares as state policy “to aid
the interes ts of [WMDVBEs] in order to preserve reasonable and just prices and a free competitive enterprise, to ensure that a fair proportion of the total purchases and contracts or subcontracts for commodities, supplies, technology, property
, and services for regul ated public utilities, including, but not limited to, renewable energy, wireless telecommunications, broadband, smart grid, and rail projects, are awarded to [WMDVBEs], and to maintain and strengthen the overall economy of the state.” (§ 8281, subd. (a).)
In furtherance of that policy, Article 5 authorize s and direct s the CPUC to: (1) require utilitie s to submit an annual, detailed and verifiable plan for increasing procurement from WMDVBEs (§ 8283, subd. (a)); (2) provide guidelines for utilities to

use in establishing programs pursuant to Article 5 (§ 8283, subd. (c)); (3) “recommend a program for carrying out the policy” of Article 5 (§ 8283, subd

. (e)(1) ) ; and (4 ) file an annual report with the Legislature on the progress of activities undertaken by u tilities in the implementation of such programs (§ 8283, subd. (e)(1)). Article 5 also directs that the utilities’ annual plans “shall include short

- and long

- term goals and timetables, but not quotas, and shall include methods for encouraging both prime contractors and grantees to engage [WMDVBEs] in subcontracts in all categories that provide subcontracting opportunities . . . .” (§ 8283, subd. (b).) In 1988, the CPUC issued Decision 88

- 04

- 057, in which it adopted an interim order, which later became G eneral Order 156
, 6 to implement Article 5. ( R e Public Utilities Code Sections 8281 to 8285 Relating to Women and Minority Business Enterprises , Decision No. 88

- 04

- 057 (1988) 28 Cal.P.U.C.2d 36.) Prior to adopting the interim order, the CPUC conducted rul emaking proceedings in which 17 utilities participated . ( Id. at p. 40.)

6 General Order 156 is available at <http://docs.cpuc.ca.gov/PublishedDocs/PUBLISHED/GRAPHICS/171157.PDF>.7

The CPUC has conducted further rulemaking proceedings since 1988 to consider and adopt modifications to General Order 156, most recently in 1998, 2003, 2005, 2006, and 2011. (Gene ral Order 156, p. 1; s ee R e Rulemaking to Revise General Order 156
, Decision No. 98

- 11

- 030 (1998) 83 Cal.P.U.C.2d 57; Decision Amending General Order
156 and Calling for Workshops , Decision No. 03

- 11

- 024 (Cal.P.U.C., Nov. 13 , 2003) <http:// docs .cpuc .ca.gov /Publishe dDocs/WORD_PDF/FINAL_DECISION/ 31751.PDF> ; Order Amending General Order 156 to Achieve Greater Reporting Uniformity
, Decision No. 05

- 12

- 023 (Cal.P.U.C., Dec. 15, 2005) <http:// docs .cpuc.ca.gov/ PublishedDocs/WORD_PDF/FINAL_DECISION/52095.PDF> ; Orde r Instituting Rulemaking for the Purpose of Amending General Order 156 , Decision No. 06

- 08

- 031 (Cal.P.U.C., Aug. 24, 2006) [ 2006 Cal. PUC LEXIS 299 ]; Order Instituting Rulemaking for the Purpose of Reviewing and Potentially Amending General Order 156 etc.
, Decision No. 11

- 05

- 019 (Cal.P.U.C., May 5, 2011) 289 P.U.R.4 th 112 [2 0 11 Cal. PUC LEXIS 276] .) Notably , in a 199 6 proceeding it considered and adopted amendments proposed pursuant to a settlement with an individual who sued the C PUC in U.S. District
Cour t challenging the constitutionality of the Commission’s WMDVBE Program. ( See Re Rulemaking to R evise General Order 156 , Decision No. 96

- 04

- 018 (1996)
65 C al. P

. U

. C

. 2d 265, 267 ; R e Rulemaking to Revise General Order 156 , Decision
No. 98

- 11

- 030 (1998) 83 C a l. P

. U

. C

. 2d 57 , 58, 70, f n.1 [discussing Decision 96

- 04

- 018
and Bras v. C

al. P

. U

. C

. , Case N o . 92

- 0 304

- WHO ] ; see also Bras v. CPUC (9th Cir. 1995)
59 F.3d 869 .)
General Order 156 includes a section on goals for increasing the engagement of
WMVDBEs in su bcont racting opportunities. (General Order 156, § 8 , pp. 16

- 19.) The goals section specifies minimum long

- term goals that utilities must set in their p lans. ( Id.
, § 8.2, pp. 16

- 17.)
B. The Limits O n Jurisdiction Over Cases Involving T he CPUC Superior court s are courts of general jurisdiction, and generally have the authority to determine the constitutionality of statutes. (Cal. Const., art. VI, § 10; Rescue Army v. Municipal Court of City of Los Angeles (1946) 28 Cal.2d 460, 464.) However, pursuant8

to its plenary authority under article XII, section 5 of the state Constitution “to establish the manner and scope of review of commission action in a court of record,” t he Legislature has explicitly restricted the jurisdiction of the superior court in cases
inv olving the CPUC: “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 del ay 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.” (§ 1759) PegaS taff’s two claims asserted aga inst the CPUC challenge Art icle 5 and General
Order 156 on California constitutional grounds
, and PegaStaff seeks a declaration that they are unconstitutional and unenforceable. The trial court determined that under section 1759 it was without jurisdiction as to the challenge to Ar ticle 5 because to declare
it unconsti t utional would be to interfere with the CPUC in the performance of its official
duties. The trial court also determined that under section 1759 it was without jurisdiction

as to the challenge to General Order 156 beca use to declare it unconstitutional would be
to annul an order of the CPUC. PegaStaff contends that the court erred as to both jurisdictional findings, arguing
that the CPUC’s “official duties” are not implicated in it s causes of action and that
section 1759 does not address original claims for relief from the effects of General Order
156

. We disagree.
1. The Superior Court Lacked Jurisdiction Over Pega S taff’s Challenge T o Ar ticle 5

. The first question we consider is whether a declaration that Article 5 is
unconstitutional would “ interfere with the [ CPUC ] in the performance of its official
duties ” within the meaning of section 1759

. PegaStaff ’s a rguments are confusing, at best. Its first argument is that Article 5 does not expressly confer on the CPUC the power to set goals for utilities procurement from W M DVBEs, and that setting and enforcing such goals are not, therefore, part of the CPUC’s official duties. From this premise, a decision9

on the constitutionality of Article 5 will not interfere with a ny such official duties. I t further argues that if Article 5 is unconstitutional, then “the CPUC has no valid ‘ official duties’ under [those provisions] with which the superior court could interfere.” I t contend s, citing BNSF Railway Co . v. Public Utilit ies Com. (2013) 218 Cal.App.4th 778 ( BNSF Railway ) , that setting WMDVBE procurement goals cannot be part of the CPUC’s official duties because such goals are not “cognate and germane to the regulation of public utilities.” Finally, PegaStaff urges us to c onstrue section 1759 to exclude constitutional challenges to statutes and CPUC regulations because the CPUC itself cannot resolve such challenges. 7 The first argument is entirely off the mark because it focuses on the validity of
G eneral O rder 156, and not on the effect of the declaratory and injunctive relief PegaStaff
seeks as to Article 5 itself. PegaStaff spec i fically requested a declaration that the provisions of Article 5 themselves are u nconstitutional and an injunction against their
enforcement. PegaStaff concedes that the CPUC’s official duties are those set forth in
the Constitut ion and statutes. If the superior c ourt had held that Article 5 was unconstitutional, that would interfere with the CPUC’s duties under that statute. Whether

or not the General Order is authorized by Article 5 or constitutes a part of the CPUC’s “official duties” is beside the point in deciding whether there is jurisdiction to consider the challenge to Article 5. PegaStaff ’s further argument

— that if Article 5 is u nco nstitutional it does not
conf er “valid duties” with which a superior c ourt ruling could interfere

— turns the jurisdictional statute on its head. PegaStaff ’s interpretation of “official duties” would require the superior c ourt to decide the merits of PegaSt aff ’s challenge in order to decide
whether it has jurisdiction to rule on that very challenge. Section 1759 denies jurisdiction to “review” or “reverse” CPUC orders and decisions and to “enjoin, restrain, or interfere” with the CPUC’s “per formance of its official duties .” PegaStaff ’s argument that the

7 PegaStaff raises this final argument with respect to its challenge to General Orde r 156 as well as to its challenge to Article 5. We address the argument in discussing the challenge to Article 5, but it applies equally to the General Order 156 challenge.10

superior courts are free to hold CPUC

- related statutes, orders and decisions invalid would entirely undermine section 1759’s fundamental purpose of limiting judicial review over challenges to CPUC orders and actions so as to “expedite the [ir] final operative effect

. ” ( County of Sonoma v. State Energy Resources Conserv ation etc. Com

. (1985) 40 Cal.3d 361, 368 [i n “ channeling judicial review of PUC decisions ” to Supreme Court [and later Court of Appeal], “the L egislature sought to expedite the final operative effect of those
decisions ”]; see Sexton v. Atchison T. & S.F. R. Co . (1916) 173 Cal. 760, 764 ( Sexton ) [ “The clear intent of the provision as a whole is to place the commission, in so far as the

state courts are concerned, in a position where it may not be hampered in the performance of any official act by any court, except to the extent and in the manne r specified in the act
itself ”]; Disenhouse v. Peevey
, supra , 226 Cal.App.4th at p. 1102 [referring to “Leg islature’s aims in placing limits on judicial review of commission actions”].)
Nor can PegaStaff ’s interpretation of “official duties” be squared with the language of section 1759. T he statute refers to “ official duties, as provide d by law and
the rules of court, ” making plain that a duty set forth in law is an official duty . Nothing about that language suggests that a law must first be found constitutional or otherwise valid in order to be a source of the CPUC’s “official duties.” So long as a law was validly enacted by the Legis lature, any duties such statute imposes on the CPUC are “official duties” within the meaning of section 1759, and the superior courts lack jurisdiction to interfere with the duties it impose s

. T he California Supreme Court held precisely that a century ago in Sexton . In that case, the plaintiff, a railroad shareholder, sought to challenge section 11 of the Public Utilities Act, which allowed commission 8 members and employees to ride any railroad for free when in the performance of their duties. ( Sexton , supra , 173 Cal. at pp. 760

- 62.) Plaintiff contended that the section deprived the railroad of property without due process
in violation of the federal and state constitutions. ( Id . at p. 762) The s uperior c ourt

8 The “commission” in Sexton was the Railroad Commission, the predecessor of the CPUC. ( I

ndependent Energy Producers Ass n

. v. McPherson (2006) 38 Cal.4th 1020, 1037.)11

sustained demur rers to the complaint for lack of jurisdiction under section 67 (predecessor to section 1759), and the California Supreme Court affirmed. ( Id . at p. 765.) The plaintiff in Sexton made the same arguments PegaStaff asserts here

— “that there can
be no offici al duty , within the meaning of that term as used in the section, to enforce a provision of the act that is in violation of a constitutional provision, . . . and that it was not the design of the section to interfere, in any way, with the jurisdiction of th e superior court to inquire as to the validity of any provision of the act, and to prevent by injunction the attempted enforcement by the commission of the provision if it found it to be invalid.” ( Id . at p. 763.) The Court gave short shrift to these arg uments: “ The first of
these [ arguments ] is not very earnestly pressed, and of course could not be in view of the language of the section. The matter of orders and decisions of the commission is dealt with in the first portion of the provision, while the latter portion, in language that cannot be read otherwise, prevents any such interference as is therein declared with any official duty of the commission. We are satisfied that the second claim is equally untenable. The plain design of the provision was to prevent any interference with the commission by the courts, except as prescribed in the act itself, in the performance of any duty defined by
the act

. The term ‘ official duties ’ as used therein cannot reasonably be given any other meaning, especially w hen considered in connection with the first portion of the provision,
as it must be. ” ( Id. at pp. 763

- 764.) PegaStaff suggests that “the law has significantly changed since Sexton .” But any
doubt about the continued vitality of that decision is put to r est by Justice Baxter’s opinion, writing for the unanimous court, in Greener v. Workers’ Comp. Appeals Bd

. (1993) 6 Cal.4th 1028 ( Greener ) . That case involved a constitutional challenge to a then new provision of the Labor Code terminating the power of th e Workers’ Compensation Appeals Board to award attorney s’ fee s to representatives of applicants who were not licensed attorneys. ( Id. at p. 1033.) Unlicensed representatives sued for declaratory relief to invalidate the statute on equal protection and ot her constitutional grounds. ( Ibid .) Interpreting a workers’ compensation jurisdictional statute (Labor Code
section 5955) that was “modeled after, and almost identical to section 67 of the Public12

Utilities Act [current section 1759]” ( id . at p. 1041), th e Supreme Court held that the superior c ourt lacked jurisdiction to address a challenge to the constitutionality of the workers’ compensation statute. ( Id. at p. 1044.) The Court of Appeal had held the opposite, accepting an argument similar to that made by the plaintiff in Sexton and by PegaStaff in this case: “that the action did not challenge an order of the Board, and did not ask the superior court to interfere with the duties of the Board, since the Board had no duty to act under an invalid statute. ” ( Id . at p. 1034.) The Supreme Co urt reversed , observing that in Sexton it had “rejected” the

argum ents on which the Court of Appeal relied: “that the jurisdictional limitations of section 67 of the Public Utilities Act applied only to review of orde rs of the commission” and “that granting the requested injunction against [enforcement of the statute] would not interfere with the commission’s performance of its duties because the commission had no duty to comply with an invalid statute.” ( Greener , su pra , 6 Cal.4th at pp. 1041

- 4 2.) The c ourt concluded, as in Sexton , that “were the relief sought by plaintiffs granted, the effect of the superior court judgment would be to interfere with the Board in carrying
out the d uty imposed on it by the [challenged ] statutes

. . . .” ( Id . at 1042 .) There is nothing about PegaStaff ’s constitutional challenge to Article 5 that is materially distinguishable from Sexton and Greener

. 9 Nor is there any merit to PegaStaff ’s argument, quoting BNSF Railway
, supra , 218 Cal .App.3d at p age 784, that

9 PegaStaff attempts to distinguish Greener because “unlike this situation under the Public Utilities Code, the Greener plaintiffs’ claims were premature because the

a gency had not yet acted in a manner so as to violate their alleged rights.” PegaStaff has not materially distinguished Greener , which stated: “If the Legislature intended by [Labor Code section 5955] to limit jurisdiction over challenges to the validity of the workers’ compensation law to claims made in a petition for review of an order or decision of the Board, plaintiff s ’ challenge was premature. When this action was instituted, the statute in question had not become effective and plaintiffs had not be en denied a lien on an applicant’s award.” ( Greener , supra , 6 Cal.4th at p. 1040.) Following this observation, the Court then went on to consider the matter of subject matter jurisdiction without reference to whether the plaintiffs’ claims might be prema ture. ( Id. at pp. 1041

- 1045.) The possible prematurity of the plaintiffs’ claims neither affected the Court’s analysis nor limited its holding.13

“[w]hile the powers of the CPUC include under [s]ection 701 . . . to ‘do all things . . . which are necessary and convenient in the exercise of [its] power and jurisdiction[,]’ . . . those powers are not unbounded ” and that additi onal powers and jurisdiction that the
commission exercises “ ‘must be cognate and germane to the regulation of public
utilities .’ ” As PegaStaff would have it, the CPUC’s adoption and enforcement of WMDVE goals for utilities’ procurement contracts is not cognate or germane to the regulation of public utilities and thus not encompassed within the “official duties” addressed by section 1759. PegaStaff again ignores that “official duties” are the duties
set forth in law . The Legislature obviously viewed the goal of encouraging utilities’
increased use of WMDV B Es for procurement as “cognate” and “germane” to the regulation of utilities when it enacted Article 5. 10 If encouraging such procurement is cognate and germane, then that is so regardless of the method by which that objective is accomplished (by goals or other mechanisms

— so long as quotas, prohibited by Article 5, are not employed ). To the extent PegaStaff contends that the CPUC acted beyond the legislative authority conferred by Article 5, that is irr elevant to whether there is jurisdiction over its challe nge to Article 5 itself, as we have already stated. To the extent it is arguing that the Legislature acted beyond its constitutional authority in enacting Article 5, the argument fails for the same r eason as its argument that Article 5 is unconstitutional and cannot confer any valid duty. “Official duties” encompass all duties impos ed by law on the CPUC, and the superior c ourt lacks jurisdiction to interfere with such duties on constitutional or any other grounds. BNSF Railway does not hold otherwise . The court there held simply that the

“ ‘ additional ’ ” and unspecified but broad supervisory and regulatory powers the Legislature conferred on the CPUC under section 701 were limited to powers that are

10 The CPUC has imposed other contracting requirements on regulated utilities, suggesting the scope of the CPU C’s authority over utilities is sufficiently broad to include contracting. (See So uthern Ca lifornia Edison Co. v. P ublic U tilities C om. (2006) 140 Cal.App.4th 1085, 1091 [finding procedural violation in CPUC’s adoption of requirement that public utilities require payment of prevailing wages to workers on energy utility construction projects].)14

“ ‘ “cognate and germane to the regulation of public utilities

. ” ’ ” ( BNSF Railway , 218 Cal.App.4th at p. 784.) The issue was whether those additional unspecified powers were broad enough to allow the CPUC to issue an order that contravened a specific st ate

statute. ( Id. at p. 785.) Our sister court held they were not. ( Id. at p. 798.) Unlike the
CPUC directive in that case , which was in direct conflict with the legislation, the question
here concerns a challenge to the legislation itself. 11 The Legis lature plainly concluded that encouraging procurement contracts with WMDV B Es was germane to utility regulation. PegaStaff ’s argument that the CPUC’s efforts to comply with that statute are

not ignores t he Legislature’s determination and finds no support i n BNSF Railway

. Last , contrary to PegaStaff ’s final argument, the fact that the CPUC could not decline to enforce a statute duly enacted by the Legislature on the ground that it violates the state or federal Constitution does not require an interpretation of section 1759 that exempts such challenges from its limitation on superior court jurisdiction. PegaStaff
contends that article I II , section 3.5 12 of the California Constitution prevents the CPUC from declaring a statute unconstitutional or refusing to e nforce it because it is unconstitutional absent an appellate court decision so holding. As PegaStaff notes, the
voters amended the California Constitution with article III, section 3.5 in response to a California Supreme Court decision holding that the CP UC did have the power to declare
statutes unconstitutional. ( See Lockyer v. City and County of San Francisco (2005) 33
Ca l.4 th 1055, 1087, citing Southern Pac. Transportation Co. v. P ublic U tilities C om. (1976) 18 Cal.3d 308 .) The general rule is that a plaintiff must first exhaust administrative remedies before seeking a judicial remedy. ( Sheet Metal Workers Intern at. Ass n

. , Local Union No.
104 v. Rea (2007) 153 Cal.App.4th 1071, 1085 [“failure to exhaust administrative remedies usually precludes a judi cial action”].) Here, PegaStaff could have sought a

11 PegaStaff also challenges General Order 156 , as we discuss below. But it discusses BNSF Railway in the context of its challenge to Article 5.

12 PegaStaff re fers to the constitutional provision as article I, section 3.5, but this is a miscitation. The provision it quotes is article III, section 3.5.15

remedy from the CPUC. (See § 1702 [“Complaint may be made [to the CPUC] . . . by any corporation or person . . . by written petition or complaint, setting forth any act or thing done or omitted to be do ne by any public utility, including any rule or charge heretofore established or fixed by or for any public utility, in violation or claimed to be in violation, of any provision of law or of any order or rule of the [CPUC]”]; § 1708.5 [the
CPUC “shall perm it interested persons to petition the commission to adopt, amend, or repeal a regulation”].)
E ven if Pega S taff could not have obtained all of the relief it seeks at the administrative level, it “would still be required to exhaust administrative remedies p rior to making the constitutional challenge.” ( Leek v. Washington Unified School Dist. (1981) 124 Cal.App.3d 43, 52; Mountain View Chamber of Commerce v. City of Mountain View (1978) 77 Cal.App.3d 82, 94

- 95 [exhaustion of the administrative remedy does no t foreclose appellants from raising the constitutional arguments in a subsequent judicial proceeding]; Morton v. Superior Court (1970) 9 Cal.App.3d 977, 984 [“the rule that the exhaustion doctrine is inapplicable when constitutional . . . issues . . . are raised . . . is not followed in California”].) 13 PegaStaff could conceivably have obtained some relief from

13 Leek was decided after the voters enacted article III, section 3.5, and the court there rejected the argume nt that the inability of the Personnel Employment Relations Board (PERB) to declare unconstitutional or decline to enforce a statute plaintiffs challenged did not excuse plaintiffs from exhausting their administrative remedy, reasoning that a ruling by PER B on nonconstitutional issues could obviate the need for a court to reach the constitutional challenge. ( Leek v. Washington Unified School Dist.
, supra , 124 Cal.App.3d at pp. 53

- 54.) In Link v. Antioch Unified School District (1983) 142 Cal.App.3d 765, 768

- 69, this court required exhaustion even where all of plaintiffs’ claims were styled as constitutional challenges, reasoning that PERB “might validly devise a method to allow plaintiffs to avoid payment for those political and ideological activities the y find constitutionally objectionable .” These cases advance “the venerable jurisprudential principle to avoid constitutional questions where other grounds are available.” ( Service Employees Intern at . Union, Local 1000 v. Dep ar t ment of Personnel Admin. (2 006) 1 42 Cal.App.4th 866, 873.) PegaS taff complains that PG&E’s program violates the Unruh Act and that PG&E’s and other private defendants’ conduct violated the unfair competiti on law and interfered with PegaS taff’s pr ospective economic advantage. Resol ution of these claims in Pega S taff’s favor could provide it complete relief and obviate the need to reach its constitutional challenges, as could a revision of the16

the CPUC as apparently an earlier challenger did in 1996

. ( See Re Rulemaking to R evise
General Order 156 , Decision No. 96

- 04

- 018 (1996) 65 C al. P

. U

. C

. 2d 265. ) It could have sought a ruling from the CPUC that PG&E, t hrough its requirements on Cores taff and Agile 1, exceeded the mandates of General Order 156 and, in doing so, committed constitutional violations. It could have sought revision of Genera l Order 156, advancing its constitutional concerns. Even though the CPUC could not have determined Article 5 to be unconstitutional, it “still remain[ed] free to interpret the existing law in the course of discharging its statutory duties.” ( Regents of U niv. of Cal. v. Public Employment
Relations Bd. (1983) 139 Cal.App.3d 1037, 1042.) An administrative agency is not prevented from construing its governing statutes “in light of constitutional standards.” ( Cumero v. Public Employment Relations Bd. (1989 ) 49 Cal.3d 575, 583.) Moreover, t he Public Utilities Act itself contemplates that constitutional questions may be involved in issues raised before the CPUC and provides for de novo consideration
of such issues in the appellate courts. Section 1760 provi des: “Notwithstanding Sections 1757 and 1757.1, [ 14 ] i n any proceeding wherein the validity of any order or decision is challenged on the ground that it violates any right of petitioner under the United States
Constitution or the California Cons titution, th e Supreme Court or Court of A ppeal shall exercise independent judgment on the law and the facts, and the findings or conclusions of the [CPUC] material to the determination of the constitutional question shall not be final.” The Legislature’s provision in section 1760 for full consideration of constitutional issues in the appellate courts means that a party such as PegaStaff who is aggrieved by a
statute it contends is unconstitutional has a n adequate remedy. It also supports an interpretation of section 1759 as depriving superior courts of jurisdiction even in
constitutional cases involving constitutional issues

.

General Order by the CPUC or an interpretation of that Order or Article 5 in light of consti tutional considerations.

14 Sections 1757 and 1757.1 limit the evidence and scope of review in the Court of A ppeal and Supreme Court in connection with petitions for writ review of CPUC decisions. Section 1760 creates an exception for constitutional chall enges.17

For all of the foregoing reasons, we agree with the s uperior c ourt ’s holding that it
lacks subject matter jurisdiction to consider PegaStaff ’s constitutional challenge to Article 5

. 15
2. The Superior Court Lacked Jurisdiction Over T he Challenge T

o General Order 156

. Section 1759 deprives the superior court s of jurisdiction to “review, reverse, correct, or annul any order” of the CPUC. This wou ld seem to settle the question of
whether the superior court may adjudicate a constitutional challenge to General Order 156, but PegaStaff argues that section 1759 addresses claims that are “in the nature of appellate review” and “does not address original claims for relief, but only CPUC
decisions and orders thereon

. ” Section 1759 is in article 3 of chapter 9 of the Public Utilities Act. Article 3 addresses judicial review of CPUC decisions or orders after a hearing on a matter is held by the CPUC purs uant to the preceding articles, which address hearings (article 1) and rehearings (article 2). A rticle 3 provides for judicial review of CPUC decisions or orders by way of petiti on for a writ of review in the C ourt of A ppeal or the Supreme Court. (§ 1756, subd. (a).) Accordingly , goes PegaStaff’s argument, “review” as used in section 1759 refers to actions that are presented as petitions for writ of review in the superior court, and not to original claims for relief that have not been preceded by an
admin istrative hearing by the CPUC : “the ‘review,’ reversal or annulment to which

15 PegaStaff cites Koponen v. Pacific Gas & Electric Co. (2008) 165 Cal.App.4th 345, 350 for the proposition that “the Superior court may properly determine certain rights of litigants without running afoul of Section 1759.” Koponen involved an al legation that PG&E violated plaintiff’s property rights, and PG&E asserted that its actions were taken pursuant to a CPUC grant of authority. ( Id. at pp. 348, 351 .) The Koponen court reversed the trial court, which had sustained PG&E’s demurrer, after

co ncluding that plaintiff’s claims had nothing to do with the CPUC grant of authority and that the CPUC “has no regulatory authority or interest in private disputes over property rights between PG&E and private landowners.” ( Id. at p. 353.) Here, the valid ity of Article 5 and General Order 156 are central to PegaStaff’s claims, materially distinguishing it from Koponen , in which the CPUC was not a defendant and the CPUC’s enabling statutes were not at issue.18

Section 1759 refers is ‘writ review’ of and relief from an inferior tribunal’s decisions following hearing, presentation of evidence

— i.e. , upon a developed record

— and a final
dec ision

. “ Apart from its description of article 3 and section 1759’s place in that article, PegaStaff cites no authority for this interpretation. PegaStaff ’s argument focuses on one clause of section 1759, but ignores, the
others . Section 1759, to be su re, bars superior court from “review[ing], revers[ing], correct[ing], or annul[ling] any order or decision of the commission or [] suspend[ing] or
del ay[ing] the execution or operat i o n thereof .” One could read that language as referring to a bar against s uperior courts exercising a function akin to appellate review of quasi

judicial and judicial decisions of the commission

— although we note that this would require a narrow interpretation of the word “o rder ” that excludes general orders, such as
General Orde r 156, issued after quasi

- legislative hearings. But even if we were to read “order” to mean only order s issued in judicial or quasi

- judicial proceeding s , s ection 1759
limits more than review of decisions and orders. It also prevents superior courts from “enjoin[ing], restrain[ing], or interfer[ing] with the commission in the performance of its official duties, as provided by law and the rules of court. ” The latter language is broad
and speaks in terms of enjoining acts of the CPUC itself, not only of rev iewing CPUC
decisions. PegaStaff also ignores the case law in which section 1759 has been invoked in suits against utility companies. In such cases, the courts have held section 1759 bars such suits in superior court if they would directly interfere with or undermine policies or regulatory programs of the CPUC. (See, e.g., People ex rel. Orloff v. Pacific Bell (2003) 31 Cal.4th 1132, 1144, 1145

- 48, 1151

- 56 [and cases cited therein].) Moreover, Division Five of this Court has opined that while superior c ourts have jurisdiction in original proceedings to enforce CPUC orders, section 1759 prevents them from considering a defense in such a proceeding that the CPUC order is invalid. ( PG&E Corp. v. Public
Utilities Com. (2004) 118 Cal.App.4th 1174, 1221.) Th e courts have thus understood section 1759 to preclude any litigation in superior court that would interfere with CPUC19

policies and programs and not merely litigation that constitutes review of CPUC
decisions. For these reasons, we affirm the superior c ou rt’s holding that s ection 1759 deprived it of jurisdiction to consider the constitutionality of General Order 156.
II. The Trial Court D id N ot Err I n Denying PegaStaff’s Motion T o Transfer

. On July 3, 2011, PegaStaff served notice of its motion to transf er its claims against
the CPUC to the Court of A ppeal, specifying July 11, 2011 as the hearing date. At the hearing, the trial court denied the motion because it was not timely made. PegaStaff does not argue that its motion was timely, 16 but instead argue s that the court was without discretion to deny its motion because granting it was required by Code of Civil Procedure
section 396. We review a trial court ruling on transfer for abuse of discretion. ( Singer v. Superior Court (1999) 70 Cal.App.4th 1315, 1320.)
The CPUC argue s that the issue of PegaStaff’s motion to transfer is not properly
before us because the issue must be raised via petition for a writ of mandate and not on appeal, citing Yousafzai v. Hyundai Motor America (1994) 22 Cal.App.4th 920, 9 22 (“a writ is the exclusive vehicle for review of such transfer orders”). However, Yousafzai observed that “appellate courts occasionally have reviewed transfer questions on appeal,” but that such cases “all involve situations where the superior courts e liminated an entire cause of action . . . from the case.” ( Id. at p. 923.) “It is important to note . . . that Yousafzai does not hold (or even consider) whether the transfer order would be subject to review on an appeal from the final judgment.” ( Ash v . Hertz Corp. (1997)
53 Cal.App.4th 1107, 1110.) Here, PegaStaff appeals from the final judgment against it as to its claims against the CPUC. Accordingly, we will consider the motion to transfer.

16 Code of Civil Procedure section 1005, subdivi sion (b), provides that “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing” unless the court prescribes a shorter time. PegaStaff served notice of its motion only 8 calendar days before the hearing.20

Code of Civil Procedure section 396 provides: “(a) No a ppeal or petition filed in the superior court shall be dismissed solely because the appeal or petition was not filed in the proper state court. [¶] (b) If the superior court lacks jurisdiction of an appeal or petition, and a c ourt of a ppeal or the Suprem e Court would have jurisdiction, the appeal or petition shall be transferred to the court having jurisdiction upon terms as to costs or otherwise as may be just, and proceeded with as if regularly filed in the court having jurisdiction.”
Code of Civil Pro cedure section 396 requires a superior court to transfer an “appeal or petition” to the Court of A ppeal or Supreme Court if it lacks jurisdiction to consider the matter itself. Such a transfer does not require a motion by the appellant or petitioner, so t he timeliness of such a motion is not relevant. However, even if we ignore
the fact that PegaStaff’s complaint does not appear to be an “appeal or petition,” transfer to this court would have been futile. As we have already noted, PegaStaff was required
to first exhaust its administrative remedies and it has not done so. Had the matter been transferred to us, we would have dismissed it for failure to exhaust administrative remedies. Accordingly, we will not find an abuse of discretion by the trial court

. DISPOSITION The judgment of the trial court is affirmed.

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.21

Trial Court: S an Francisco City and County Superior Court
Trial Judge: Hon. Richard Kramer
Attorney for Plaintiffs and Appellants: The Quinlan Law Firm, LLC William J. Quinlan Lisa H. Quinlan Sarah M. Steele
Litigation Law Group Gordon M. Fauth, Jr.
Attorneys for Defendants and Respondents: Ruiz & Sperow, LLP Janice L. Sperow Forrest F. Fang Juliana V. Kresse