IN THE SUPREME COURT OF
CALIFORNIA
ANTHONY GANTNER,
Plaintiff and Appellant,
v.
PG&E CORPORATION et al.,
Defendants and Respondents.
S273340
Ninth Circuit
21-15571
Northern District of California
4:20-cv-02584-HSG
November 20, 2023
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Groban, Jenkins,
Evans, and O’Rourke* concurred.
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
GANTNER v. PG&E CORPORATION
S273340
Opinion of the Court by Liu, J.
Pacific Gas and Electric Company (PG&E) conducted a
series of emergency power shutoffs, called Public Safety Power
Shutoffs (PSPS), throughout the fall of 2019 to reduce the risk
that its utility infrastructure would ignite a wildfire during
extreme weather conditions. Plaintiff Anthony Gantner alleges
that these power shutoffs were necessitated by PG&E’s
negligence in maintaining its power grid over multiple decades
and that Californians harmed by these shutoffs are entitled to
$2.5 billion in damages.
While Public Utilities Code section 2106 provides a private
right of action against utilities, section 1759 of the same code
bars actions that would interfere with the California Public
Utilities Commission (PUC) in the performance of its official
duties. (All undesignated statutory references are to the Public
Utilities Code.) We consider here, in response to a request by
the United States Court of Appeals for the Ninth Circuit,
whether section 1759 bars a lawsuit that seeks damages
resulting from PSPS events where the suit alleges that a
utility’s negligence in maintaining its grid necessitated the
shutoffs but does not allege that the shutoffs were unnecessary
or violated PUC regulations. We hold that allowing suit here
would interfere with the PUC’s comprehensive regulatory and
supervisory authority over PSPS. Section 1759 therefore bars
Gantner’s suit. The Ninth Circuit also asked us to decide
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Opinion of the Court by Liu, J.
whether PG&E Electric Rule No. 14 (Tariff Rule 14) shields
PG&E from liability, but we do not reach that issue.
I.
Gantner filed a class action complaint against PG&E in
2019 in the Bankruptcy Court for the Northern District of
California as part of PG&E’s Chapter 11 bankruptcy
proceedings. Gantner alleges that PG&E negligently
maintained its power grid and electrical equipment for decades
and that this negligence forced the utility to implement a series
of PSPS in 2019 to reduce the risk of wildfires. The PSPS events
in question led to “many days” without power for Gantner and
other California residents and business owners, who requested
class damages of $2.5 billion to compensate for the “loss of
habitability of their dwellings, loss of food items in their
refrigerators, expenses for alternative means of lighting and
power, . . . loss of cell phone connectivity, dangerous dark
conditions, lack of running water, and loss of productivity and
business.” Gantner does not allege that the 2019 PSPS were
unnecessary or that they were implemented in contravention of
PUC regulations or policies.
PG&E moved to dismiss Gantner’s complaint, arguing
that the bankruptcy court lacked subject matter jurisdiction
under section 1759 because Gantner’s suit would interfere with
the PUC’s supervision and regulation of the PSPS scheme. (See
San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th
893, 918 (Covalt).) Alternatively, PG&E argued that its own
“Tariff Rule 14 provides that the decision to shut off a customer’s
power cannot trigger liability when, in PG&E’s ‘sole opinion’, it
is necessary for public safety.” The bankruptcy court concluded
that section 1759 bars Gantner’s action and dismissed the
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Opinion of the Court by Liu, J.
complaint without leave to amend and without addressing
PG&E’s Tariff Rule 14 argument. On appeal, the United States
District Court for the Northern District of California affirmed
the dismissal based on section 1759 preemption. Gantner
appealed to the Ninth Circuit, which issued an order requesting
that this court answer two questions concerning California law.
We granted the Ninth Circuit’s request to consider two
questions: “(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, 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?”
II.
“ ‘The [Public Utilities] [C]ommission is a state agency of
constitutional origin with far-reaching 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. (Id., §§ 2, 4, 6.)’ ” (Covalt, supra, 13 Cal.4th at
pp. 914–915.) “The Constitution also confers plenary power on
the Legislature to ‘establish the manner and scope of review of
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Opinion of the Court by Liu, J.
commission action in a court of record’ (Cal. Const., art. XII,
§ 5).” (Id. at p. 915.
A.
We start by examining the background of PSPS, along
with the PUC’s supervision and regulation of those procedures.
“Over the last decade, California has experienced increased,
intense, and record-breaking wildfires . . . . These fires have
resulted in devastating loss of life and damage to property and
infrastructure.” (Decision Adopting De-Energization (Public
Safety Power Shut-Off) Guidelines (Phase 1 Guidelines) (May 30,
2019) Cal.P.U.C. Dec. No. 19-05-042 [2019 Cal.P.U.C. Lexis
270, *2].) While the underlying causes of wildfires are complex
and varied, failure of electric utility infrastructure can ignite
fires. (Id. at pp. *2–*3.) The risks of infrastructure failure and
wildfire ignition increase in conjunction with certain conditions
such as low humidity, high winds, and dry vegetation. (Id. at
pp. *3–*4.) Conversely, proper maintenance of utility
infrastructure can reduce these risks and increase safety. (Id.
at p. *105.
Electric utilities are required to operate their grids in
ways that “promote the safety [and] health” of the public. (§ 451;
see also § 399.2, subd. (a)(1) [requiring electrical utilities to
operate their grids safely].) The PUC has determined that these
statutory provisions provide authority for utilities “to shut off
power in emergency situations when necessary to protect public
safety.” (Decision Denying Without Prejudice San Diego Gas &
Electric Company’s Application to Shut Off Power During
Periods of High Fire Danger (Sept. 10, 2009) Cal.P.U.C. Dec.
No. 09-09-030 [2009 Cal.P.U.C. Lexis 437, *98].) Nevertheless,
when San Diego Gas & Electric (SDG&E) sought approval of a
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Opinion of the Court by Liu, J.
proposed PSPS program in 2009, the PUC denied its request and
encouraged SDG&E to continue considering options to reduce
the risk of catastrophic wildfires, reminding the utility that any
proposals must employ a cost-benefit analysis that weighs the
benefits of reduced wildfire risk against the costs to customers
and communities. (Id. at p. *1.
In 2012, the PUC provided PSPS guidelines applicable
only to SDG&E, explaining what actions a utility must take
before and after shutting off power, the factors the PUC would
consider in assessing the reasonableness of an emergency power
shutoff, and how shutoffs would be reviewed and evaluated by
regulators. (Decision Granting Petition to Modify Decision 09-
09-030 and Adopting Fire Safety Requirements for San Diego
Gas & Electric Company (Apr. 19, 2012) Cal.P.U.C. Dec. No. 12-
04-024 [2012 Cal.P.U.C. Lexis 165, *48–*52].) In 2018, following
what was then “the most destructive wildfire season on record,”
the PUC extended de-energization policies and procedures to all
investor-owned electric utilities, including PG&E. (Resolution
Extending De-Energization Reasonableness, Notification,
Mitigation and Reporting Requirements in Decision 12-04-024 to
All Electric Investor Owned Utilities (July 12, 2018) Cal.P.U.C.
Res. No. ESRB-8 [2018 Cal.P.U.C. Lexis 330, *4].
In 2019, the PUC promulgated a set of formal PSPS
guidelines, acknowledging that “[w]ith the growing threat of
wildfire, utilities will proactively cut power to lines that may fail
in certain weather conditions in order to reduce the likelihood
that their infrastructure could cause or contribute to a wildfire.”
(Cal.P.U.C. Dec. No. 19-05-042, supra, 2019 Cal.P.U.C. Lexis
270 at p. *3.) These binding guidelines, along with those
adopted in Resolution ESRB-8, “remain in effect unless and
until they are superseded by another Commission decision or
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GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
resolution.” (Cal.P.U.C. Dec. No. 19-05-042, supra, 2019
Cal.P.U.C. Lexis 270 at p. *202.
The PUC’s guidelines require utilities to undertake a
public notice and community engagement process, to notify
customers affected by de-energization as soon as practicable, to
create plans for mitigating harm from de-energization, and to
promptly submit a report to the PUC following each de-
energization event. (Cal.P.U.C. Res. No. ESRB-8, supra, 2018
Cal.P.U.C. Lexis 330 at pp. *10–*16.) The PUC also may
conduct post hoc reasonableness reviews of de-energization
events “to ensure that the power shut off is executed only as a
last resort and for good reason.” (Id. at p. *8; see ibid. [listing
factors identified by PUC as pertinent to its reasonableness
review, including the utility’s de-energization alternatives,
reasonable belief in “an imminent and significant” fire risk, and
“efforts to mitigate the adverse impacts” of a power shutoff].
Before implementing a shutoff, utilities must conduct a cost-
benefit analysis to “determine[] that the benefit of de-
energization outweigh[s] potential public safety risks.”
(Cal.P.U.C. Dec. No. 19-05-042, supra, 2019 Cal.P.U.C. Lexis
270 at p. *237.
Meanwhile, the Legislature in 2016 passed Senate Bill
No. 1028, which added section 8386 requiring electric utilities
to submit annual wildfire mitigation plans to the PUC for
review. (Stats. 2016, ch. 598, § 1; see § 8386, subd. (b).) In 2018,
the Legislature expanded section 8386 to specify that wildfire
mitigation plans shall include “[p]rotocols for . . . deenergizing
portions of the electrical distribution system that consider the
associated impacts on public safety.” (Stats. 2018, ch. 626, § 38;
see § 8386, subd. (c)(6).) Effective July 1, 2021, the Legislature
transferred the responsibility to “oversee and enforce electrical
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GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
corporations’ compliance with wildfire safety” to the Office of
Energy Infrastructure Safety (OEIS). (Stats. 2019, ch. 81, § 7;
see § 326, subds. (a)(1), (b).) At the same time, the Legislature
clarified that “[n]othing in this chapter [describing the power of
OEIS] affects the commission’s authority or jurisdiction over an
electrical corporation, electrical cooperative, or local publicly
owned electric utility.” (§ 8385, subd. (b).) The PUC thus
continues to have responsibility for ratifying PSPS plans
approved by the Wildfire Safety Division of OEIS (§ 8386.3,
subd. (a)), evaluating utilities’ pre-season and post-season
reports on PSPS (Decision Adopting Phase 3 Revised and
Additional Guidelines and Rules for Public Safety Power
Shutoffs (Proactive De-Energizations) of Electric Facilities to
Mitigate Wildfire Risk Caused by Utility Infrastructure (June
24, 2021) Cal.P.U.C. Dec. No. 21-06-034 [2021 Cal.P.U.C. Lexis
305, *167–*173]), and conducting investigations and levying
penalties against utilities for noncompliance with PSPS rules
and regulations (see, e.g., [Proposed] Administrative
Enforcement Order in the matter of Pacific Gas & Electric
Company’s Execution of 2020 Public Safety Power Shutoff
Events (June 15, 2022) available at <https://www.cpuc.ca.gov/-
/media/cpuc-website/divisions/safety-and-enforcement-
division/acos-and-aeos/pge-administrative-enforcement-order---
2020.pdf> [as of Nov. 14, 2023] (brackets in original) [proposing
to fine PG&E $12 million and implement corrective action for
regulatory violations during 2020 PSPS events]; all Internet
citations in this opinion are archived by year, docket number,
and case name at http://www.courts.ca.gov/38324.htm).
In February 2019, PG&E submitted its annual wildfire
mitigation plan to the PUC. This plan contained PG&E’s
proposed PSPS program, including: “(1) PSPS decision factors;
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GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
(2) strategies to enhance PSPS efficiency while reducing
associated impacts; (3) PSPS notification strategy; and (4) re-
energization strategy.” The PUC approved PG&E’s plan as
compliant with the requirements of section 8386, subdivision (c),
while also noting that “several aspects of the company’s planned
mitigation . . . require improvement or other follow-up activity.”
After the fall 2019 PSPS events that form the basis of this
action, PG&E submitted reports on the power shutoffs to the
PUC. The PUC found that during the PSPS events, PG&E
violated the Public Utilities Code and PUC guidelines due to
“the unavailability and non-functionality of [PG&E’s] website,”
“the inaccuracy of its online outage maps” showing affected
areas, the “constructive[] inaccessib[ility]” of its secure data
transfer portals, and its “failure to provide advanced notification
to approximately 50,000 customers,” including “approximately
1,100 Medical Baseline customers.” (Decision on Alleged
Violations of Pacific Gas and Electric Company with Respect to
its Implementation of the Fall 2019 Public Safety Power Shutoff
Events (Sept. 23, 2021) Cal.P.U.C. Dec. No. 21-09-026 [2021
Cal.P.U.C. Lexis 480, *110].) For these violations, the PUC
fined PG&E over $106 million. (Id. at p. *112.) In a separate
investigation into the same PSPS events, the PUC concluded
that among other violations of the Public Utilities Code, PG&E
“failed to identify the possible safety risks resulting from an
electric power shutoff” and “failed to evaluate these safety risks
as part of the analysis of weighing the benefits and risks.”
(Decision Addressing the Late 2019 Public Safety Power Shutoffs
by Pacific Gas and Electric Company, Southern California
Edison Company, and San Diego Gas & Electric Company to
Mitigate the Risk of Wildfire Caused by Utility Infrastructure
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Opinion of the Court by Liu, J.
(June 3, 2021) Cal.P.U.C. Dec. No. 21-06-014 [2021 Cal.P.U.C.
Lexis 278, *312–*313].
B.
This case concerns the bounds of section 1759 preemption.
By statute, public utilities remain liable for “any act, matter, or
thing prohibited or declared unlawful,” as well as for omissions
of “any act, matter, or thing required to be done.” (§ 2106.) This
private right of action is limited by section 1759, which divests
all courts except this court and the Court of Appeal of
jurisdiction “to review, reverse, correct, or annul any order or
decision of the commission or to . . . enjoin, restrain, or interfere
with the commission in the performance of its official duties.”
(§ 1759, subd. (a).
“[I]n 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.” (Waters v. Pacific Telephone Co. (1974
12 Cal.3d 1, 4 (Waters).) Preemption under section 1759 is not
limited to actions that “would directly contravene a specific
order or decision of the commission.” (Covalt, supra, 13 Cal.4th
at p. 918.) An action is also barred if it “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.” (Ibid., fn. omitted.
Section 1759 bars an action when three requirements are met:
(1) the PUC had the authority to adopt certain regulations or
policies; (2) the PUC actually exercised that authority; and (3
the action would interfere with the PUC’s exercise of that
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Opinion of the Court by Liu, J.
authority. (Hartwell Corp. v. Superior Court (2002) 27 Cal.4th
256, 266 (Hartwell).
Where “the relief sought would . . . interfere[] with a broad
and continuing supervisory or regulatory program of the
commission,” section 1759 bars the action. (Covalt, supra, 13
Cal.4th at p. 919.) In Waters, a customer sought damages from
her telephone company for its alleged failure to provide
adequate phone service. (Waters, supra, 12 Cal.3d at p. 4.) We
explained that because the PUC “ha[d] adopted a policy of
limiting the liability of telephone utilities . . . for acts of ordinary
negligence to a specified credit allowance,” allowing a suit for
damages “would be contrary to the policy adopted by the
commission and would interfere with the commission’s
regulation of telephone utilities.” (Ibid.) Section 1759 therefore
barred the customer’s action. (Ibid.
Similarly, in Covalt, homeowners sued an electric utility,
arguing that by increasing the number of power lines near the
plaintiffs’ home, the utility had “ ‘dramatically increased the
dangerous levels of electromagnetic radiation flowing onto
plaintiffs’ property.’ ” (Covalt, supra, 13 Cal.4th at p. 911.) Over
the previous decade, the PUC had undertaken a lengthy and
thorough review of the available scientific evidence, had
determined that the evidence did not establish that electric and
magnetic fields (EMF) were dangerous, and had issued a seven-
point EMF policy. (Id. at pp. 926–934.) We held that because
the suit sought a court determination that EMF “are in fact
dangerous,” a determination that “would plainly undermine and
interfere with [PUC] policy” (id. at p. 947), section 1759 barred
the action (id. at p. 903).
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Opinion of the Court by Liu, J.
And in Hartwell, plaintiffs sued water utilities for
providing allegedly contaminated drinking water, regardless of
whether the contaminants exceeded the levels allowed by the
PUC. (Hartwell, supra, 27 Cal.4th at pp. 275–276.) Section
1759 barred the subset of claims based “on the theory that the
public utilities provided unhealthy water, even if that water
actually met [Department of Health Services] and PUC
standards.” (Hartwell, at p. 276.) At the same time, “damage
claims based on the theory that the water failed to meet federal
and state drinking water standards [were] not preempted by
section 1759.” (Ibid.) “A jury award based on a finding that a
public water utility violated [state] standards would not
interfere with the PUC regulatory policy requiring water utility
compliance with those standards.” (Ibid.
III.
With this background in mind, we turn to the present case.
The parties agree that the PUC has the authority to regulate
PSPS and that it has exercised that authority. Gantner does not
challenge the PUC’s general PSPS regulations or policies, nor
does he challenge the procedures undertaken by the PUC to
create those policies. He does not allege that PG&E’s 2019
shutoff events were unnecessary or that they were conducted in
violation of PUC regulations or requirements, and we have no
occasion to consider how section 1759 might apply to a suit
predicated on PUC findings that a utility violated PUC
guidelines by or while implementing a PSPS event. Further,
Gantner does not seek damages or injunctive relief based on
harms resulting directly from PG&E’s negligent grid
maintenance. Rather, he alleges that PG&E’s negligent
maintenance caused the need for the 2019 PSPS events, which
in turn led directly to the alleged damages. The question is
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GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
whether Gantner’s action would interfere with the PUC’s
exercise of its authority to regulate PSPS.
A.
Gantner alleges that the fall 2019 PSPS events “were a
direct and legal result of the negligence” of PG&E in
maintaining its grid and that “PG&E breached its duty of care
to millions of its customers by shutting off their power . . . .”
(Italics added.) Gantner’s suit, while alleging negligence by
PG&E in grid maintenance only, claims that all of the alleged
harm — and all damages sought — flow directly from PG&E’s
fall 2019 PSPS events. To award damages on this theory, a
court would have to find that PG&E breached its duty by
negligently maintaining its grid and that this negligence
foreseeably caused the PSPS events and resulting harms. But
the PUC has already instituted procedures for evaluating PSPS
before and after a power shutoff, along with its own criteria for
examining the propriety of each PSPS decision. Although the
PUC has conducted extensive investigation into the fall 2019
PSPS events, Gantner’s suit does not adopt any of the PUC’s
findings or conclusions. Rather, by claiming damages for PSPS
events without regard to whether those events were necessary
or properly executed under PUC guidelines, Gantner’s suit
impermissibly interferes with the PUC’s supervisory policies
regarding both PSPS implementation and post hoc
reasonableness review.
First, Gantner’s suit would interfere with the PUC’s
“broad and continuing supervisory . . . program” over the
implementation of PSPS events. (Covalt, supra, 13 Cal.4th at
p. 919.) For over a decade, the PUC has emphasized that a
utility’s decision to shut off power must stem from its
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overarching duty to protect public safety. (Cal.P.U.C. Dec.
No. 09-09-030, supra, 2009 Cal.P.U.C. Lexis 437 at p. *98.) PUC
guidelines provide that before deciding to implement a PSPS
event, “a utility must first engage in a critical analysis.”
(Cal.P.U.C. Dec. No. 21-06-014, supra, 2021 Cal.P.U.C. Lexis
278 at p. *54.) The utility must “identify and consider the safety
risks to the public from shutting off electric power,” and “then
the utility must weigh the risks of a PSPS event against the
benefits of initiating a PSPS event.” (Ibid.) The PUC has
“explained, in detail, the potential for ‘significant’ adverse
impacts on the general public as a result of power shutoffs due
to wildfire concerns.” (Id. at p. *13; see id. at pp. *13–*14
[describing 15 categories of harm that may result from power
shutoffs].) Nevertheless, the PUC has authorized the regulated
use of PSPS events as a “last resort,” endorsing the practice
where the public safety benefits of a reduced risk of wildfire
ignition outweigh the harms of lost power. (Cal.P.U.C. Res.
No. ESRB-8, supra, 2018 Cal.P.U.C. Lexis 330 at p. *8.
By seeking billions of dollars in alleged damages resulting
directly from power shutoffs, Gantner’s suit would “ ‘hinder’ or
‘frustrate’ ” the PUC’s carefully designed implementation
calculus. (Covalt, supra, 13 Cal.4th at p. 918.) In Hartwell,
section 1759 barred suit against regulated water providers
where water contaminant levels remained below maximum
limits allowed by the PUC. (Hartwell, supra, 27 Cal.4th at
p. 276.) Where the PUC has decided that a certain level of
contamination is acceptable, an action seeking damages for
contamination below that threshold “ ‘would plainly undermine
the commission’s policy.’ ” (Ibid.) Nothing in Hartwell suggests
that a plaintiff can avoid section 1759 preemption simply by
alleging that a permissible level of contamination occurred as a
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result of a water provider’s impermissible negligence. This is
for good reason: section 1759 preemption turns on the
constitutional and statutory authority of the PUC rather than
simply the underlying behavior of the utility. (See Waters,
supra, 12 Cal.3d at p. 10 [“general principles which might
govern disputes between private parties are not necessarily
applicable to disputes with regulated utilities”].
It is true that in Hartwell the PUC concluded that water
complying with permissible contamination levels was “ ‘ “in no
way harmful or dangerous to health” ’ ” (Hartwell, supra, 27
Cal.4th at p. 263), whereas here the PUC acknowledged the
harms caused by PSPS. But the PUC approved a system of
PSPS decision-making based on the conclusion that in certain
conditions, the harms of PSPS are outweighed by the benefits of
wildfire prevention. Gantner seeks damages resulting from
PSPS events without alleging negligence in the decision to shut
off power or in PSPS implementation. Hartwell held that a
utility could not be liable for contamination levels that fell
within PUC-approved levels; here, PG&E cannot be liable for
implementing PSPS events that, as far as the complaint alleges,
fully complied with PUC guidelines. To hold otherwise would
be to invite interference with a “ ‘broad and continuing
supervisory or regulatory program’ of the PUC.” (Id. at p. 276.
A suit alleging that a utility implemented PSPS events in
violation of PUC guidelines might present different
considerations under Hartwell. But we decline to speculate on
section 1759’s application to such a case.
Gantner contends that PUC guidelines do not permit a
utility to consider its risk of liability to customers affected by
PSPS events as part of the balancing necessary to justify PSPS
implementation. Thus, he argues, a damage award for the
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harms caused by PSPS events would fall outside of, and
therefore would not frustrate, the PUC’s regulatory framework.
Assuming without deciding that Gantner is correct that PUC
guidelines bar utilities from considering the liability risk from a
power shutoff, this argument is not persuasive.
First, Gantner’s argument fails to account for the fact that
any prohibition on a utility’s consideration of liability derives
from PUC guidelines and supervision. If utilities cannot
consider liability as a factor in implementing PSPS events, it is
because the PUC has determined that as a matter of policy
utilities ought not consider liability in these decisions. The PUC
has emphasized that utilities should instead consider only the
public safety implications through a careful cost-benefit
analysis. (Cal.P.U.C. Dec. No. 21-06-014, supra, 2021
Cal.P.U.C. Lexis 278 at p. *54.) By seeking damages resulting
directly from PSPS events, Gantner’s suit heightens the risk
that potential tort liability will factor into a utility’s shutoff
decision-making. This puts Gantner’s suit at cross-purposes
with the PUC’s carefully designed scheme. (Gantner v. PG&E
Corporation (N.D.Cal. 2021) 629 B.R. 60, 67; see also Southern
California Gas Leak Cases (2019) 7 Cal.5th 391, 401 [“exposure
to liability often provides an important incentive for parties to
internalize the social costs of their actions”].
Furthermore, the PUC’s supervision over PSPS extends
far beyond regulating the implementation of power shutoffs.
Recognizing “the growing threat of wildfire” (Cal.P.U.C. Dec.
No. 19-05-042, supra, 2019 Cal.P.U.C. Lexis 270 at p. *3), the
PUC determined that “proactively de-energizing power lines can
save lives” (id. at p. *4). The PUC’s carefully calibrated PSPS
guidelines “build[] on new weather tracking and modeling
technology” and add to “tougher regulations for removing
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vegetation” (ibid.) while acknowledging that power shutoffs can
cause real harm to affected individuals and businesses (id. at
pp. *4–*5). By seeking liability for PSPS events regardless of
whether the shutoff decision or implementation was negligent,
Gantner’s suit interferes with the PUC’s broad supervisory
power over how utilities can and should respond to the present
threat of catastrophic wildfires. Gantner’s suit also risks
interfering with the PUC’s careful ratemaking decisions, either
by increasing utility costs directly through extensive litigation
or by incentivizing the acceleration of grid maintenance and
improvement beyond the levels accounted for by the PUC. (See
Hartwell, supra, 27 Cal.4th at p. 276 [section 1759 bars action
that could interfere with PUC ratemaking]; Waters, supra, 12
Cal.3d at p. 10 [same].
Second, Gantner’s suit would interfere with the PUC’s
post hoc review of PSPS events. The PUC has implemented its
own process for evaluating the reasonableness of PSPS events
and maintains the authority to issue penalties and orders to
utilities based on noncompliance with existing PSPS guidelines.
(See, e.g., Cal.P.U.C. Dec. No. 21-09-026, supra, 2021 Cal.P.U.C.
Lexis 480 at p. *1 [finding that PG&E violated PUC guidelines
in implementing fall 2019 PSPS events and assessing a
penalty]; see also Cal.P.U.C. Dec. No. 21-06-014, supra, 2021
Cal.P.U.C. Lexis 278 at pp. *335–*351 [identifying numerous
violations by PG&E related to the fall 2019 PSPS events].) The
PUC’s reasonableness review focuses on the environmental and
grid conditions at the moment a utility decides to implement a
PSPS event, as well as the utility’s actions subsequent to that
decision. (See Cal.P.U.C. Res. No. ESRB-8, supra, 2018
Cal.P.U.C. Lexis 330 at p. *9 [a utility “must reasonably believe
that there is an imminent and significant risk that strong winds
16
GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
will topple its power lines onto tinder dry vegetation or will
cause major vegetation-related impacts on its facilities during
periods of extreme fire hazard” in order to implement a PSPS
event], underscoring omitted.
Gantner’s suit would require a court to hold a parallel
review process, adding the judgment of a jury to that of the PUC
in assessing the causes and propriety of PG&E’s PSPS
implementation. Gantner’s inquiry focuses on PG&E’s grid
maintenance going back decades, even though PUC guidelines
do not indicate that prior grid management or mismanagement
is an appropriate factor for a utility to consider in implementing
a PSPS event. Rather, the PUC’s extensive guidance is focused
on the conditions as they exist at the moment of
implementation, based on a holistic assessment of weather
conditions, ground conditions, and, inevitably, a utility’s
understanding of the strength and reliability of its grid
infrastructure. (Cal.P.U.C. Dec. No. 12-04-024, supra, 2012
Cal.P.U.C. Lexis 165 at p. *40 [the utility “will be in the best
position to determine when power should be shut off to protect
public safety” because only the utility “has the detailed
knowledge of its facilities that is needed to make this decision in
real time based on contemporaneous local weather conditions”].
The PUC has made clear that a utility may decide to de-energize
only when, in the moment, it believes the wildfire prevention
benefits of such action outweigh the costs to residents and
communities of de-energization. Assessment of a utility’s
compliance with these standards in deciding to implement a
PSPS event “is a factual issue that is within the exclusive
jurisdiction of the [PUC] to decide.” (Sarale v. Pacific Gas &
Electric Co. (2010) 189 Cal.App.4th 225, 243 (Sarale).
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GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
Indeed, following the fall 2019 PSPS events at issue here,
the PUC thoroughly reviewed PG&E’s actions. The PUC found
that PG&E violated its guidelines in numerous ways and
assessed fines totaling $106 million, the majority of which
resulted from inadequate notification to customers. (Cal.P.U.C.
Dec. No. 21-09-026, supra, 2021 Cal.P.U.C. Lexis 480 at
pp. *112–*114.) In a separate investigation, the PUC further
determined that PG&E “failed to identify the possible safety
risks resulting from an electric power shutoff” and “failed to
evaluate these safety risks as part of the analysis of weighing
the benefits and risks.” (Cal.P.U.C. Dec. No. 21-06-014, supra,
2021 Cal.P.U.C. Lexis 278 at pp. *312–*313.) Although finding
that “a monetary remedy [was] appropriate” for these violations
(id. at p. *67), the PUC was “reluctant to impose monetary
penalties,” instead applying a ratemaking remedy (id. at p. *69).
In choosing this remedy, the PUC intended to “strik[e] a balance
between the need in 2019 for utilities to initiate PSPS events . . .
against the equally compelling need to conduct PSPS events in
a safe manner.” (Ibid.
Gantner’s suit does not adopt any of the findings of fact or
conclusions of law from either of these post-PSPS reviews.
Rather, the complaint makes clear that Gantner seeks a parallel
review process that if successful would require findings in
tension with PUC guidelines. For example, while the complaint
alleges underlying negligence in part because the wind gusts at
the time of one PSPS event “[n]ever came close to the [PUC’s] 92
miles per hour threshold,” the PUC says it has “declined to use
wind speed as a determinative factor for when a utility can or
may not implement a PSPS event.” Similarly, while the
complaint alleges that PG&E failed to properly manage
vegetation that “posed a foreseeable hazard to power lines,” the
18
GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
PUC considered and approved PG&E’s proposed vegetation
management as part of the utility’s 2019 Wildfire Mitigation
Plan (see Decision on Pacific Gas and Electric Company’s 2019
Wildfire Mitigation Plan Pursuant to Senate Bill 901 (May 30,
2019) Cal.P.U.C. Dec. No. 19-05-037 [2019 Cal.P.U.C. Lexis 272,
*1, *29–*42]).
The current action thus seeks damages for the effects of
PSPS events without any allegation that those events were
executed in violation of PUC guidelines. Gantner’s argument
instead turns entirely on whether PG&E breached its duty of
care and whether any breach caused the alleged damages.
Because all alleged damages stem from the PSPS events
themselves, the adjudication of breach, causation, and damages
will inevitably involve an assessment of why the PSPS events
were implemented and whether they could or should have been
avoided. But the questions of PSPS implementation and
execution — along with the policy choice to use PSPS to mitigate
wildfire risk and protect public safety — are reserved to the
PUC, which has exercised its authority to delineate the factors
relevant to these inquiries. Section 1759 bars Gantner from
seeking a parallel review of PG&E’s PSPS decision-making and
implementation through his suit. (See Covalt, supra, 13 Cal.4th
at p. 939 [section 1759 bars an action seeking findings
“inconsistent with the [PUC]’s conclusion”].
B.
Gantner argues that if this suit is barred, utilities like
PG&E will “get a free pass for their own negligence.” But
“section 1759 does not leave plaintiffs without a remedy” for
utility negligence. (Sarale, supra, 189 Cal.App.4th at p. 244.) It
simply means that the “remedy lies before the commission
19
GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
rather than in . . . court.” (Ibid.) As the PUC notes in its amicus
curiae brief, “The Legislature has . . . provided a statutory
scheme that includes formal complaint procedures before the
Commission.” Customers concerned that PG&E may
improperly implement PSPS could also “seek injunctive relief
from the Commission” and could intervene in PSPS rulemaking.
Moreover, the PUC notes that a utility’s annual wildfire
mitigation plan must “address all the actions a utility commits
to take in the coming year to reduce wildfire risk — including
system hardening, undergrounding lines, inspections, and
vegetation management.” (See § 8386, subd. (c)(3), (c)(8)–(10),
(c)(12), (c)(14)–(15) [listing requirements of wildfire mitigation
plans].) These plans are approved by OEIS and ratified by the
PUC, and members of the public may comment on the proposed
plans prior to approval. (§ 8386, subd. (d).) Similarly, the PUC’s
post hoc reasonableness review includes an assessment of why
the utility implemented a PSPS event (Cal.P.U.C. Res.
No. ESRB-8, supra, 2018 Cal.P.U.C. Lexis 330 at p. *8), and
where a utility fails to provide a sound basis for PSPS
implementation, the PUC can assess penalties and apply other
remedial measures (Cal.P.U.C. Dec. No. 21-06-014, supra, 2021
Cal.P.U.C. Lexis 278 at pp. *67–*69 [assessing ratemaking
remedy in lieu of penalties for PG&E’s failure to consider the
public risks of shutoffs before implementing its 2019 PSPS
events]).
Gantner next argues that because the PUC cannot award
damages to customers, this suit does not interfere with its
authority over PSPS. Gantner is correct that the PUC does not
and cannot award tort damages to customers affected by the
negligence of utilities. (Cal.P.U.C. Dec. No. 21-06-014, supra,
2021 Cal.P.U.C. Lexis 278 at p. *68 [PUC “does not have
20
GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
jurisdiction to award damages to utility customers”].) Gantner
is also correct that our proposed holding might limit the ability
of some customers harmed by PSPS events to seek
compensation. But the possibility that some customers might
not receive compensation for harms resulting from PSPS events
is a result of the Legislature’s decision to adopt section 1759,
which limits actions that interfere with PUC supervision despite
the PUC’s inability to offer compensatory relief for utility
negligence. Gantner’s argument that no claim seeking damages
based on past negligence could ever be barred by section 1759 is
unsupported by our precedent. (See, e.g., Waters, supra, 12
Cal.3d at p. 10 [§ 1759 barred claim seeking damages for
telephone utility’s past negligence]; Covalt, supra, 13 Cal.4th at
p. 950 [damages based on negligence of electric utility “would
plainly undermine” the PUC’s policies]; Hartwell, supra, 27
Cal.4th at p. 276 [§ 1759 barred claim for damages based on
utilities’ past provision of allegedly unhealthy drinking water].
To the extent that customers are left without recourse to seek
compensation for the alleged negligence of utilities or the loss of
power during PSPS events, such concerns are properly directed
to the Legislature.
Because his suit is based on allegations of negligent grid
management prohibited by PUC regulations, Gantner contends
that this action supports rather than hinders PUC authority.
But even if the current action might support the PUC’s
supervisory role over grid maintenance, the authority it
interferes with relates to the PUC’s supervision of PSPS.
Gantner is correct that imposing liability can alter a defendant’s
behavior, and if this suit were allowed to proceed, Gantner may
be right that it would “incentivize[] PG&E to provide safe and
reliable electricity to its customers.” But Gantner did not file
21
GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
suit based on harm resulting directly from underlying
negligence in grid maintenance, and he did not seek an
administrative remedy through the PUC to compel PG&E’s
compliance with maintenance regulations. Rather, Gantner
filed suit for alleged harms that resulted directly and exclusively
from PSPS events. As noted, because the action heightens the
risk that a utility’s PSPS decision-making may be influenced by
considerations outside the scope of the cost-benefit analysis set
forth by the PUC, it works at cross-purposes with the PUC’s
regulation, supervision, and guidelines, and thus section 1759
bars this suit.
As noted, today’s decision does not foreclose the possibility
of a narrowly tailored suit based on allegations that a utility
acted negligently and in violation of PUC guidelines in its
decision to implement PSPS events or the implementation of
those events. We also decline to address whether a negligent
grid maintenance suit could proceed on a narrow claim for
damages or injunctive relief that is properly tailored to avoid
conflict with any Commission regulations over PSPS and
wildfire safety. Because Gantner’s complaint does not raise
such claims, we need not decide whether they would be barred
by section 1759.
Gantner also argues that regardless of the PUC’s
regulation of PSPS at the time of the fall 2019 PSPS events,
subsequent legislation transferring PSPS supervisory authority
to OEIS means the PUC no longer possesses any authority with
which his suit could interfere. It is true that OEIS now has “all
functions” of the PUC’s former Wildfire Safety Division. (§ 326,
subd. (b).) But PG&E notes that the statutory transfer of
authority to OEIS occurred “well after the filing of this lawsuit
and the 2019 PSPS events.” The parties thus appear to disagree
22
GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
on whether section 1759 preemption can occur where a
supervisory program was “broad and continuing” or whether it
requires a program that is “broad and continuing.”
We need not resolve this disagreement because in any
event, the PUC retains a supervisory and regulatory role over
PSPS such that section 1759 bars the current action. The
statute transferring authority to OEIS noted that “[n]othing in
this chapter affects the commission’s authority or jurisdiction
over an electrical corporation, electrical cooperative, or local
publicly owned electric utility.” (§ 8385, subd. (b).) And the
PUC has continued to exercise control over various aspects of
PSPS regulation and supervision. The PUC ratifies wildfire
safety plans approved by OEIS (§ 8386.3, subd. (a)), conducts
investigations and levies penalties following PSPS events (see,
e.g., Cal.P.U.C. Dec. No. 21-09-026, supra, 2021 Cal.P.U.C.
Lexis 480 at pp. *115–*116), and continues to enforce its
existing PSPS guidelines and resolutions (id. at pp. *109–*110).
The statute vesting supervisory powers over PSPS in OEIS
repeatedly refers to the ongoing legal obligation of utilities to
comply with PUC orders, rules, and requirements. (See, e.g.,
§ 8386, subd. (c)(11) [utilities’ de-energization protocols “shall
comply with any order of the commission regarding
deenergization events”]; see also id., subd. (c)(7) [mandating
compliance with “orders of the commission regarding
notifications of deenergization events”]; id., subd. (c)(12), (c)(15),
(c)(16), (c)(18), (c)(19)(B), (c)(21), (c)(22)(C) [all referencing PUC
rules, regulations, or decisions in establishing utilities’ ongoing
obligations].) Moreover, section 1759 preemption can occur
where the PUC shares supervisory or regulatory authority with
another agency. (See Hartwell, supra, 27 Cal.4th at p. 274 [PUC
“continue[d] to exercise its jurisdiction to regulate drinking
23
GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
water quality” despite relying on contamination standards set
by the Department of Health Services].
Finally, we note that the PUC has submitted an amicus
brief asserting that allowing Gantner’s suit would “interfere
with the Commission’s broad, general, and ongoing
administration of PSPS policies.” We have previously given
weight to the PUC’s views regarding section 1759 preemption.
(See People ex rel. Orloff v. Pacific Bell (2003) 31 Cal.4th 1132,
1153 [“Indeed, the PUC itself, in an amicus curiae brief filed in
this court in support of the People, agrees that nothing in the
present action undermines or hinders any ongoing policy,
program, or other aspect of its authority.”].) At the same time,
“ ‘the PUC’s interpretation is not controlling but . . . is one of
“among several tools available to the court.” ’ ” (Wilson v.
Southern California Edison Co. (2015) 234 Cal.App.4th 123,
147, fn. 23; see also id. at pp. 147–151 [declining to adopt the
PUC’s view that § 1759 barred the action].) We have no need
here to consider as a general matter how much weight is
properly accorded to the PUC’s view. We simply note that the
PUC’s position, which is supported by the facts and our section
1759 precedent, further bolsters our holding.
CONCLUSION
We hold that section 1759 bars Gantner’s action against
PG&E because the suit would interfere with the PUC’s broad
and continuing supervision and regulation of PSPS
implementation and review. We express no view on whether
Tariff Rule 14 would also prohibit Gantner’s suit.
24
GANTNER v. PG&E CORPORATION
Opinion of the Court by Liu, J.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
O’ROURKE, J.*
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
25
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Gantner v. PG&E Corporation
Procedural Posture (see XX below
Original Appeal
Original Proceeding XX on request by 9th Circuit (Cal. Rules of
Court, rule 8.548
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
Opinion No. S273340
Date Filed: November 20, 2023
Court:
County:
Judge:
Counsel:
Phillips, Erlewine, Given & Carlin, Nicholas A. Carlin, Brian S.
Conlon, Kyle P. O'Malley; Hausfeld, Bonny E. Sweeney, Seth R.
Gassman and Tae H. Kim for Plaintiff and Appellant.
Glancy Prongay & Murray and Jonathan M. Rotter for Former
President of the Public Utilities Commission Loretta Lynch, Former
Administrative Law Judge Steven Weissman and Professor Seth Davis
as Amici Curiae on behalf of Plaintiff and Appellant.
Cravath, Swaine & Moore, Omid H. Nasab; Horvitz & Levy, Robert H.
Wright and Jeremy B. Rosen for Defendants and Respondents.
Munger, Tolles & Olson, J. Kain Day and Henry Weissmann for
Southern California Edison and San Diego Gas & Electric as Amici
Curiae on behalf of Defendants and Respondents.
Vinson & Elkins, Mortimer H. Hartwell, Jeremy C. Marwell, Matthew
X. Etchemendy and Nathan T. Campbell for Edison Electric Institute
as Amicus Curiae on behalf of Defendants and Respondents.
Christine Jun Hammond, Candace J. Morey and Mary McKenzie for
the California Public Utilities Commission as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Nicholas A. Carlin
Phillips, Erlewine, Given & Carlin LLP
39 Mesa Street, Suite 201
San Francisco, CA 94129
(415) 398-0900
Omid H. Nasab
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 8th Avenue
New York, NY 10019
(212) 474-1972
Candace J. Morey
California Public Utilities Commission
505 Van Ness Avenue
San Francisco, CA 94102
(415) 703-3211
Opinion Information
| Date: | Docket Number: |
| Mon, 11/20/2023 | S273340 |
