6. Relief Requested by WGC
WGC's protest asks the Commission to take judicial notice of a complaint that WGC has filed against Wild Goose in the superior court for Butte County (Case Number 149934, filed April 2, 2010) and more particularly, to "order as an express condition of any amendment to WGS's [Wild Goose's] certificate of public convenience and necessity that WGS's [sic] must conduct its gas storage operations in accordance with the final judgment, if any is rendered, in the Wild Goose Lawsuit."16 Both the protest and Wild Goose's subsequent reply describe the subject of the complaint as a contractual dispute between the two that concerns land use and noise. The Commission lacks jurisdiction to adjudicate a private contract of this kind, as both agree; accordingly, the merits of the complaint are not before the Commission.
As support for the relief it seeks, WGC relies upon "the comity that should exist between the Commission and the courts of this state, in order to avoid potentially inconsistent decisions, and in order to avoid confusion on the part of the WGS and WGC regarding their respective rights and duties . . . "17 WGC cites no authority. Wild Goose opposes WGC's request and interprets legal authority to establish that the Commission neither can, nor should, grant the relief WGC seeks.
Indeed, as Wild Goose argues, it is well established that this Commission has very broad regulatory powers, with origins in both the California Constitution and in statute. The California Supreme Court (Supreme Court) has recognized the Commission's authority repeatedly.18 Moreover, § 1759, in relevant part, expressly limits review of Commission decisions to the courts of appeal and the Supreme Court, and also prohibits superior courts from enjoining the Commission's lawful review of matters before it.19
While § 2106, in relevant part,20 provides a private right of action against a public utility in the superior courts for damages, the Supreme Court has explained that such actions must be "limited to those situation in which an award of damages would not hinder or frustrate the commission's declared supervisory and regulatory policies."21
Further, the Supreme Court has explained:
. . . an action for damages is barred by section 1759 not only when an award of damages would directly contravene a specific order or decision of the commission, i.e. when it would `reverse, correct, or annul' that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would `hinder' or `frustrate' or `interfere with' or `obstruct' that policy.22
The Supreme Court's guidance in harmonizing § 1759 and § 2106 has resulted in a three-part test that asks: (1) whether the Commission has regulatory authority to act; (2) whether the Commission has exercised that authority; and (3) whether the superior court's judgment would hinder or interfere with the Commission's exercise of its regulatory authority.23
Wild Goose argues that the first two parts of this test clearly have been met, since the Commission is poised to issue a decision on the Phase 3 expansion application over which it has undisputed regulatory authority and, that it is premature to assess the third since the superior court has yet to issue a decision on the WGC complaint. Thus, Wild Goose contends:
In the absence of any certainty regarding what this future Superior Court order may contain, it is both impossible and unreasonable to ask the commission to prospectively subordinate its own broad authority and jurisdiction to an unspecified future judgment of a Superior Court.24
We have no need, here, to opine upon what circumstances, if any, might persuade us to condition a decision upon compliance with a superior court decision. Given the procedural status of the WGC complaint, and the nature of the matter properly before us, we agree with Wild Goose that today's decision should not be conditioned in the manner that WGC requests.
16 WGC Protest at 6. The complaint is part of Exhibit A to the protest.
17 Id., emphasis in original.
18 See for example, Hartwell Corp v The Superior Court of Ventura County {Hartwell}, (2002) 27 Cal. 4th 256, 265 (2002), citing San Diego Gas & Electric Co. v. Superior Court, Martin Covalt et al., real parties in interest [Covalt] (1996) 13 Cal. 4th 893, 914-915.
19 Section 1759(a) provides:
No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court.
20 Section 2106 provides:
Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom. If the court finds that the act or omission was wilful, it may, in addition to the actual damages, award exemplary damages. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.
21 Waters v. Pac. Tel Co. [Waters], (1974) 12 Cal. 3d 1, 4.
22 Covalt, supra, at 918.
23 Hartwell, supra, at 266, citing Covalt and Waters.
24 Wild Goose Reply to Protest at 5.
