In Gantner v. PG&E Corp., a Ninth Circuit panel today asked the Supreme Court to decide these questions of California law:

(1) Does California Public Utilities Code section 1759 preempt a plaintiff’s claim of negligence brought against a utility if the alleged negligent acts were not approved by the California Public Utilities Commission (“CPUC”), but those acts foreseeably resulted in the utility having to take subsequent action (here, a Public Safety Power Shutoff), pursuant to CPUC guidelines, and that subsequent action caused the plaintiff’s alleged injury?

(2) Does PG&E’s Electric Rule Number 14 shield PG&E from liability for an interruption in its services that PG&E determines is necessary for the safety of the public at large, even if the need for that interruption arises from PG&E’s  own negligence?

The questions arise in a class action alleging that PG&E’s negligent maintenance of its electrical equipment caused five prolonged power shutoffs in 2019 to prevent wildfires and that the shutoffs caused plaintiffs “loss of habitability of their dwellings, loss of food items in their refrigerators, [and] expenses for alternative means of lighting and power.”

A bankruptcy court dismissed the complaint, ruling the action preempted by Public Utilities Code section 1759, which provides, “No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the [Public Utilities] [C]ommission 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.”

The case involves the interplay between section 1759 and section 2106, which provides a public utility is liable if it “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.”

Rule 14 is a tariff rule PG&E filed with the PUC that provides in part, “PG&E specifically maintains the right to interrupt its service deliveries, without liability to the Customers or electric service providers (ESPs) affected, when, in PG&E’s sole opinion, such interruption is necessary for reasons including, but not limited to, the following:  1. Safety of a customer, a PG&E employee, or the public at large.”

The Supreme Court should let the Ninth Circuit know by the end of April — give or take — whether it will answer the questions.  It probably will.  The Supreme Court has granted 12 of the last 13 Ninth Circuit requests for help in resolving questions of California law, dating back to July 2018.  The lone denial during that time was in October 2019.

Related:

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