NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM R. SARALE; JULIE ANN No. 16-15037
SARALE, individually, Trustee of the James
J. Cavalli Testamentary Trust, and Trusteee D.C. No.
of the Eva M. Cavalli 2007 Trust, 2:14-cv-02573-TLN-CKD
Plaintiffs-Appellants,
MEMORANDUM*
v.
CALIFORNIA INDEPENDENT SYSTEM
OPERATOR CORPORATION; PACIFIC
GAS & ELECTRIC COMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted October 20, 2017
San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HOYT,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
William and Julie Sarale appeal a Rule 12(b)(6) dismissal of their civil rights
complaint alleging a taking of their property and related claims. The Sarales claim
that Pacific Gas & Electric Company (“PG&E”) exceeded the scope of a 1915
easement permitting PG&E to trim walnut trees around high-voltage power
transmission lines running across Plaintiffs’ walnut farm. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
Although the district court did not reach PG&E’s issue preclusion argument,
we may affirm on any ground supported by the record. Campbell v. State of
Washington Dep’t of Soc. & Health Servs., 671 F.3d 837, 842 n.4 (9th Cir. 2011).
The issues previously decided by the California District Court of Appeal and
California Public Utilities Commission (“CPUC”) collaterally estop the Sarales
from relitigating the same issues in their federal action. That is dispositive of their
claims, and we affirm on that basis.
First, the California District Court of Appeal preclusively held that PG&E’s
easement existed as a matter of law, and “[t]he Sarales [had pled] no facts
suggesting that the plain terms of the PG&E right-of-way [were] ambiguous or
uncertain.” Sarale v. Pac. Gas & Elec. Co., 189 Cal. App. 4th 225, 245 (2010).
The court dismissed Plaintiffs’ lawsuit, concluding that CPUC had exclusive
jurisdiction to decide if PG&E’s trimming within 20 feet of the power lines to
avoid risk of fire was “unreasonable, unnecessary, or excessive[.]” Id. at 231. The
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holding as to the existence of the easement was “necessary to the determination of
jurisdiction and therefore ha[s] a preclusive effect” under California law. See
Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 767 (9th Cir. 2007) (citations
omitted).
Second, CPUC preclusively held that PG&E’s trimming on Plaintiffs’
walnut farm was not excessive, but rather “necessary, proper, and reasonable in the
overall framework of consistent regulation and management of vegetation growth
near power lines.” Sarale, D-14-05-008 (Cal. Pub. Util. Comm’n May 7, 2014)
(modified decision dismissing complaint).
As an initial matter, CPUC’s decision satisfies the Utah Construction
fairness test. See Plaine v. McCabe, 797 F.2d 713, 718–19 (9th Cir. 1986) (citing
United States v. Utah Const. & Min. Co., 384 U.S. 394, 422 (1966)). CPUC
adjudicated whether PG&E’s trimming was reasonable after the Sarales
participated in a five-hour evidentiary hearing and submitted evidence, testimony,
and briefing. Plaintiffs “had an opportunity, which [they] chose not to take, for
judicial review” of the agency decision by a California appellate court. See
Misischia v. Pirie, 60 F.3d 626, 630 (9th Cir. 1995); Cal. Pub. Util. Code § 1756.
California’s collateral estoppel requirements are also satisfied. See Plaine,
797 F.2d at 720 (citing People v. Sims, 32 Cal. 3d 468, 484 (1982)). “[T]he issue
necessarily decided at the previous [proceeding]”—whether PG&E’s trimming was
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reasonable—“is identical to the one which is sought to be relitigated.” See Sims,
32 Cal. 3d at 484 (alteration in original). Moreover, “the previous [proceeding]
resulted in a final judgment on the merits,” and the Sarales were party to the prior
proceeding. Id. (alteration in original). In sum, CPUC’s now final decision
collaterally estops them from relitigating whether PG&E’s trimming was
reasonable. See Plaine, 797 F.2d at 718–20; see also Cal. Pub. Util. Code § 1709
(“In all collateral actions or proceedings, the orders and decisions of [CPUC]
which have become final shall be conclusive.”).
Given the preclusive effect of these prior rulings, the Sarales’ claims cannot
withstand a Rule 12(b)(6) motion. There can be no taking under the Fifth
Amendment or California Constitution because PG&E acted within the scope of its
easement. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1028–29 (1992).
The conspiracy to defraud and fraud claim fails for the same reason: PG&E
lawfully exercised its rights under the easement, so Plaintiffs cannot prove
“damages resulting from reliance on a misrepresentation.” See Bldg. Permit
Consultants, Inc. v. Mazur, 122 Cal. App. 4th 1400, 1415 (2004). Neither can
Plaintiffs show an “unlawful interference,” as required to state a trespass claim, see
Girard v. Ball, 125 Cal. App. 3d 772, 788 (1981), or that PG&E interfered or
attempted to interfere with a state or federal constitutional or legal right—an
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element of their state civil rights claim, see Jones v. Kmart Corp., 17 Cal. 4th 329,
334 (1998).
Each party shall bear its own costs on appeal.
AFFIRMED.
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