III. Discussion

A. Overview

In order for the Commission to make a finding under § 625 that this condemnation is in the public interest, it must find, among other things, that the property to be condemned is necessary for the proposed public utility project. If Cox owns or is otherwise entitled to access the easements in question, then it is not necessary for Cox to condemn them. Cox is currently litigating easement entitlement issues in the Superior Court. We therefore dismiss this action without prejudice to Cox refiling the complaint. The appropriateness of such refiling will depend on the outcome of the Superior Court litigation over Cox's entitlement to access the utility easement.

Logic and efficiency support this result, because it makes sense to permit the Superior Court, a court of general jurisdiction, to address the property issues which are currently before it, rather than having multiple fora adjudicate the same issues concurrently. Finally, the primary jurisdiction doctrine supports this result because the easement issues, which concern contract and real property law, do not require the Commission's specialized public utility expertise, such as ratemaking, but rather legal issues that courts routinely resolve. The result we adopt promotes uniformity of decisions and judicial economy, policies that underlie primary jurisdiction doctrine.

B. Necessity is a vital determination in a § 625 action

Before Cox can file a condemnation action in the Superior Court seeking to condemn property for a competitive purpose, it must obtain a finding from the Commission pursuant to § 625 that the condemnation is in the public interest. In order for the Commission to make such a finding, it must find, among other things, that the property to be condemned is necessary for the proposed project. (Section 625 (b)(2)(B).) To the extent the necessity determination depends on the Commission's regulatory expertise regarding technical and economic conditions in the telecommunications industry, the Commission is the right forum for this determination.

C. Whether or not Cox has existing access rights to the easements in question is critical to determining necessity

If Cox owns or is otherwise entitled to access the easements in question for purposes of providing utility service to the facility parcel, then it would not be necessary to condemn this property for the proposed project.

"[T]he power of eminent domain [the power to condemn] may only be exercised if the property interest to be acquired is `necessary' for a public use. (Code Civ. Proc., § 1240.110, subd. (a).)" (City of San Francisco v. Mayer (4^th Dist., Div. 2, 1998) 67 Cal.App.4^th 1350, 1354-1355; 79 CR2d 704, 707.)

In other words, for reasons unrelated to considerations within the Commission's regulatory expertise, the proposed condemnation may not be necessary.

D. Cox's entitlement to access the easements is currently being litigated in the Superior Court

The question of Cox's access rights is currently being litigated in other fora. In the Cox Superior Court Action, Cox and CoxCom seek a declaration that CoxCom has an easement across Crow Development's property to install and maintain its cable system, over which cable television, high-speed internet access, and telephone services are provided to Park Place customers on the facility parcel. Cox and CoxCom also allege they are entitled to continued use of these easements without interference from Crow Development. In the Jamboree Superior Court Action, Jamboree contends that CoxCom and Cox are entitled to access the utility easements by virtue of Jamboree's claimed easement rights.¹¹

If the Superior Court determines that Cox owns or is otherwise entitled to access the easement in dispute, then this condemnation action would be precluded because Cox could not establish the necessity for this condemnation action. Therefore, this action is premature and should be dismissed without prejudice to Cox refiling this case after the Superior Court renders a final decision concerning Cox's entitlement to access the utility easements. In other words, the Superior Court first should resolve as a matter of law whether Cox owns or otherwise is entitled to utility easements over Crow Development's property.

We choose to dismiss, as opposed to stay this proceeding, because § 1701.2 (d) states that adjudication cases shall be resolved within 12 months of initiation unless the Commission makes findings why the deadline cannot be met and issues an order extending that deadline. Section 625 also has short deadlines within which to commence a hearing. It is more consistent with these statutes to dismiss the proceeding without prejudice, because it is unclear at this point how long the proceeding would have to be stayed, or whether the parties might resolve their differences while the other proceedings are being adjudicated. Finally, depending the outcome of the Superior Court litigation, Cox may get the access it desires without this Commission's further involvement.

E. Logic and efficiency support a dismissal of this case without prejudice

As stated in Camp Meeker Water System v. Public Utilities Com. (1990) 51 Cal.3d 845, 861 (citations omitted, emphasis added), "[t]he commission expressly recognizes that its functions do not include determining the validity of contracts, whether claims may be asserted under a contract, or interests in or title to property, those being questions for the courts. It claims only the power to construe, for purposes of exercising its regulatory authority and ratemaking authority, the existing rights of a regulated utility."

It would not promote judicial economy for the Commission to make complex title and access determinations as part of exercising its regulatory authority when the Superior Court is currently adjudicating these same underlying title and access issues. For example, it might not be necessary to litigate this case if the Superior Court ultimately rules in CoxCom or Cox's favor on the easement entitlement issue. Moreover, if these two proceedings are litigated concurrently, the potential exists for the two fora to reach inconsistent results.

Cox makes five arguments in support of its position that the Commission should not dismiss this complaint. First, Cox argues that its legal claims in various fora are different and do not present the possibility of inconsistent results. Cox explains that it is pleading its claims against Crow Development in the alternative in an effort to ensure that its claims for relief against Crow Development are heard.

When a party pleads inconsistent theories it typically does so in the same case before the same forum. In such circumstances, the trier of fact has the discretion to conduct the case as procedurally appropriate, and, in the interest of judicial economy or to promote an orderly adjudication of the case, may or may not hear all issues concurrently. For instance, at this Commission, we may conduct proceedings in phases, or hear consecutive rounds of testimony. However, in this case, the matters are filed in different fora. It is an inefficient use of the parties' time and resources for the Commission to make complex title and access determinations as part of exercising its regulatory authority under § 625, while the Superior Court is currently adjudicating the title and access issues, and where the potential for inconsistent results between the two fora exists. Our dismissal here does not prevent Cox from refiling this case once the Superior Court determines the relevant title and access issues, if in fact it is necessary for Cox to do so.

Second, Cox argues that this action should go forward now, because the legally separate entity CoxCom, not Cox, claims an easement right in the Cox Superior Court Action. However, this distinction is blurred in the multiple pending actions. Both Cox and CoxCom are parties in the Cox Superior Court Action. In the instant complaint at the Commission, Cox states it has an agreement with CoxCom whereby Cox leases capacity in and on CoxCom's facilities to provide local exchange telephone service. If the Superior Court finds that CoxCom has an easement on Crow Development's property, we find that, as a practical matter, Cox in turn will obtain access to the easements.

Third, Cox believes that the doctrine of collateral estoppel will promote judicial economy if this case goes forward now. Collateral estoppel may preclude litigation of an issue, conclusively determined, as against the parties in a subsequent lawsuit on a different cause of action. (Vandenburg v. Superior Court (1999) 21 Cal.4^th 815.) We disagree with Cox, and believe that having multiple fora concurrently determining easement access issues could lead to inconsistent results which would require even more time on the part of the Commission and the parties to address.

Fourth, Cox argues that the Commission will still have to decide whether Cox's condemnation of easements on Crow Development's property is necessary for public use regardless of the outcome of the Cox Superior Court Action, because the easements at issue in the condemnation action are more expansive than the easements at issue in either the Cox or Jamboree Superior Court Actions. We disagree.

Although Cox's complaint describes the easements it seeks to condemn somewhat differently in different paragraphs, the descriptions address the existing utility easements to serve the facility parcel, and not (as it claims for the first time in a supplemental pleading) broad easement rights which may be necessary to provide service to future tenants in establishments being developed on Crow Development's property.¹² Cox cannot now for the first time by supplemental pleading expand the scope of the easements sought to be condemned to avoid dismissal without prejudice. This is especially the case when § 625 provides a very fast timeframe within which to commence a hearing. Even if Cox were to formally request to amend the complaint, logic and efficiency support this Commission hearing the § 625 case, if necessary, after the Superior Court determines the precise scope of Cox's existing easement access rights.

Fifth and finally, Cox argues that this action should go forward now because the Superior Court was not persuaded by its claimed easement rights when it ruled on Cox and CoxCom's motion for preliminary injunction in the Cox Superior Court Action. However, the Superior Court has not yet rendered a final decision on the merits in that case. Moreover, Cox and CoxCom have not dismissed this case, or their easement claims, from the Cox Superior Court Action in light of the Superior Court's ruling on the preliminary injunction. For the above reasons, we hold that it is appropriate to dismiss this case without prejudice.

F. Dismissal of this case without prejudice is consistent with a proper understanding of the primary jurisdiction doctrine

Cox believes that the doctrine of primary jurisdiction mandates a different result from that which we reach today. Cox claims that § 625 confers exclusive original jurisdiction over Cox's complaint seeking condemnation authority, and that as a result, this Commission has the primary jurisdiction to decide this complaint now and pursuant to § 625 must do so.

The doctrine of primary jurisdiction is a judicially created doctrine whereby the court stays a judicial proceeding pending prior resort to the administrative process. It is sometimes confused with the exhaustion of administrative remedies doctrine, which is a closely related concept.

"Both [the primary jurisdiction and exhaustion of administrative remedies doctrines] are essentially doctrines of comity between courts and agencies. They are two sides of the timing coin: Each determines whether an action may be brought in court or whether an agency proceeding, or further agency proceeding, is necessary."

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" `Primary jurisdiction' ... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4^th 377, 390, emphasis omitted.)

Courts generally invoke the doctrine of primary jurisdiction so that an administrative agency can deal with a specialized matter or provide its expert and specialized knowledge on an issue. (Farmers Ins. Exchange, 2 Cal.4^th at 388.) "[T]he threshold question...is whether the Legislature established a scheme that precludes a court from exercising discretion. ..." (Id. at 394.)

In Farmers Ins. Exchange, the court stayed judicial proceedings until the Insurance Commission could resolve whether Farmers violated sections of the Insurance Code relating to the Good Driver Discount Policy, where the statutes and administrative regulations set forth a "pervasive and self-contained system of administrative procedure" to deal with the questions presented. (Farmers Ins. Exchange, 2 Cal.4^th at 396.) Courts have invoked the primary jurisdiction doctrine to resolve questions involving specialized agency expertise such as ratemaking, but decline to invoke this doctrine to resolve common law issues such as alleged employment discrimination, even when related statutory violations are first cognizable by the administrative agency. (Farmers Ins. Exchange, 2 Cal.4^th at 395-396, citing cases.)

Dismissal without prejudice of this condemnation action is consistent with the primary jurisdiction doctrine. The Superior Court is currently addressing issues concerning CoxCom and Cox's entitlement to access the easements in question. These are not issues involving the Commission's specialized expertise, but rather contract and real property issues that courts routinely resolve. A ruling in Cox's favor on the easement question may moot this condemnation action, and certainly has bearing on the issue of necessity to condemn the easements which is before the Commission in the instant case. Nothing in the primary jurisdiction doctrine precludes us from determining that the instant action is premature, and from hearing Cox's § 625 complaint (if necessary) after the Superior Court has resolved the easement entitlement issues. In fact, the result we adopt promotes uniformity of decisions and judicial economy, policies that underlie the primary jurisdiction doctrine.