gno.law

Disenhouse v. Peevey

California Court of Appeal · D063799 · 2014-06-03 · Published · 226 Cal. App. 4th 1096 · 172 Cal. Rptr. 3d 549 · 2014 WL 2464960 · 2014 Cal. App. LEXIS 487

MASADA DISENHOUSE, Plaintiff and Appellant, v. MICHAEL R. PEEVEY Et Al., Defendants and Respondents

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. 37-2013-00038448-CU-MC-CTL
Trial judge
Timothy B. Taylor
Outcome
affirmed — Affirmed.
Area
civil
Panel
Judith D. McConnell (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:40Z · confidence high

The trial court dismissed the plaintiff's complaint for lack of subject matter jurisdiction, holding that the Public Utilities Code deprived the superior court of authority to enjoin the Public Utilities Commission. The Court of Appeal affirmed, ruling that the only proper remedy to enforce the Bagley-Keene Open Meeting Act against the Commission is a petition for writ of mandate in the Supreme Court or Court of Appeal, and that the merits were moot.

Ruling reviewedStandardThe courtThe model
Dismissal of complaint for lack of subject matter jurisdiction
“Accordingly, the superior court did not err by dismissing Disenhouse's complaint for lack of subject manner jurisdiction.”
de novocorrectagree with court
The court correctly applied the principle of statutory harmonization to resolve the conflict between the Public Utilities Code and the Bagley-Keene Open Meeting Act. By identifying that a writ of mandate is a valid enforcement mechanism under both statutes, the court logically concluded that the superior court lacked jurisdiction to issue an injunction, as the Legislature had reserved that power to the appellate courts.
Declining to decide the merits of the injunction application
“The challenged meeting occurred more than a year ago and can no longer be enjoined. Consequently, the injunction application is moot.”
mixedcorrectagree with court
The court correctly identified that the specific meeting at issue had already occurred, rendering the requested injunctive relief impossible to grant. It further correctly noted that the 'capable of repetition, yet evading review' exception did not apply because the court had provided guidance on the proper procedural vehicle for future challenges.

Authorities

  • relied: San Diego Gas & Electric Co. v. Superior Court (Covalt) (1996) 13 Cal.4th 893 — Establishes that the Legislature has plenary power to limit judicial review of Commission actions and that Section 1759 deprives other courts of jurisdiction to interfere with the Commission's duties.
  • relied: Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781 — Confirms the purpose of the Bagley-Keene Open Meeting Act and that it applies to the Public Utilities Commission, though the court distinguished it on the basis that it did not address Section 1759.
  • relied: Waters v. Pacific Tel. Co. (1974) 12 Cal.3d 1 — Provides the rule of statutory construction requiring courts to harmonize conflicting statutes and avoid unnecessary conflict.
  • relied: Pacific Tel. & Tel. Co. v. Superior Court of San Francisco (1963) 60 Cal.2d 426 — Interprets Section 1759 as placing the Commission in a position where it may not be hampered by any court except the Supreme Court and Court of Appeal.
  • relied: North Pacifica LLC v. California Coastal Com. (2008) 166 Cal.App.4th 1416 — Supports the conclusion that a petition for writ of mandate is an authorized and consistent means of enforcing the Open Meeting Act.
  • relied: Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161 — Defines the standard for mootness, stating an appeal is moot if events render it impossible to grant effective relief.

The appellate opinion: sound — The opinion is sound because it effectively reconciles two potentially conflicting statutes by identifying a procedural mechanism (writ of mandate) that satisfies both the Open Meeting Act's enforcement provisions and the Public Utilities Code's jurisdictional limits. It correctly distinguishes prior case law that did not address the specific jurisdictional bar of Section 1759.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The superior court dismissed Masada Disenhouse's complaint for an injunction to open a Public Utilities Commission meeting, holding that Public Utilities Code section 1759 deprived it of jurisdiction, and declined to reach whether the meeting violated the Bagley-Keene Open Meeting Act. The Court of Appeal affirmed, holding that an interested person may enforce the Act against the commission only by petition for writ of mandate in the Supreme Court or Court of Appeal, and declined to reach the merits of the injunction application as moot.

Ruling reviewedStandardThe courtThe model
Dismissal of complaint for injunctive relief against the Public Utilities Commission for lack of subject matter jurisdiction under Public Utilities Code section 1759
“Thus, we conclude an interested person desiring to enforce the Act against the commission must do so by filing a petition for writ of mandate in the Supreme Court or the Court of Appeal and may not do so by filing an action for injunctive relief in the superior court.”
de novocorrectagree with court
Section 1759, subdivision (a) expressly strips courts other than the Supreme Court and Court of Appeal of jurisdiction to enjoin or interfere with the commission in performing its official duties, and subdivision (b) preserves mandamus in those courts; Government Code section 11130 lists mandamus as one of the available remedies, so harmonizing the statutes (Waters) leaves the Act enforceable against the commission by writ in the reviewing courts. The court correctly distinguished Peevey and California Oregon Power as not addressing section 1759. The opinion does not, however, walk through the Covalt/Hartwell three-part framework typically used for section 1759 questions, though the result would be the same because the suit sought to enjoin the commission directly.
Superior court's refusal to decide the merits of the ex parte injunction application after finding it lacked jurisdiction
“The challenged meeting occurred more than a year ago and can no longer be enjoined. Consequently, the injunction application is moot.”
unclearnot reachedagree with court
A court without subject matter jurisdiction properly declines to reach the merits, and on appeal the March 2013 meeting had long since occurred, so no effective injunctive relief was possible. The court reasonably declined to apply the capable-of-repetition exception because it had already resolved the recurring legal question (the proper forum) and because deciding an injunction's merits would be inconsistent with holding that mandamus was the only available remedy.

Authorities

  • relied: San Diego Gas & Electric Co. v. Superior Court (Covalt) (1996) 13 Cal.4th 893 — The commission has broad constitutional and statutory powers, and section 1759 bars courts other than the Supreme Court and Court of Appeal from reviewing, enjoining, or interfering with commission actions.
  • relied: Pacific Tel. & Tel. Co. v. Superior Court of San Francisco (1963) 60 Cal.2d 426 — Section 1759 places the commission in a position where it may not be hampered in any official act by any state court except as specified in the Public Utilities Code.
  • relied: Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781 — The Bagley-Keene Open Meeting Act applies to the Public Utilities Commission and authorizes actions to prevent threatened violations and void actions taken in violation of the Act.
  • relied: Waters v. Pacific Tel. Co. (1974) 12 Cal.3d 1 — Statutes touching commission jurisdiction and other statutory schemes must be construed to harmonize their language and avoid unnecessary conflict.
  • relied: North Pacifica LLC v. California Coastal Com. (2008) 166 Cal.App.4th 1416 — A petition for writ of mandate is an authorized means of enforcing the Bagley-Keene Act, consistent with legislative intent that such enforcement actions be commenced and resolved promptly.
  • relied: McWilliams v. City of Long Beach (2013) 56 Cal.4th 613 — Cases are not authority for propositions not considered.
  • relied: Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161 — An appeal is moot when events make it impossible for the appellate court to grant any effective relief.
  • relied: Fuller v. Bowen (2012) 203 Cal.App.4th 1476 — The mootness exception for public interest issues capable of repetition yet evading review.
  • relied: In re Marriage of Jensen (2003) 114 Cal.App.4th 587 — Subject matter jurisdiction is a question of law reviewed independently.
  • missed: Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256 — Refines the Covalt three-part test for determining when a superior court action is barred by section 1759 because it would hinder or interfere with the commission's exercise of regulatory authority; the opinion did not apply this framework, although the direct suit to enjoin the commission itself makes the result the same.

The appellate opinion: sound with gaps — The court correctly harmonized section 1759 with Government Code section 11130 by relying on the plain text of section 1759, subdivision (b) and the Act's express authorization of mandamus, and properly distinguished the authorities Disenhouse cited as not considering section 1759. It did not engage the Covalt/Hartwell three-part framework ordinarily used for section 1759 jurisdictional questions or address the specific-over-general canon Disenhouse might invoke under the later-enacted Act, but neither omission undermines the result given that the suit sought to enjoin the commission directly.

How this analysis was made · dispute it

Opinion — McConnell

Filed 6/3/14 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MASADA DISENHOUSE, D063799

Plaintiff and Appellant, v. (Super. Ct. No. 37-2013-00038448- CU-MC-CTL) MICHAEL R. PEEVEY et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed.

Aguirre, Morris & Severson, Michael J. Aguirre, Christopher S. Morris and Maria C. Severson for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney General, Michael G. Witmer, Marc A. Leforestier and Kari Krogseng, Deputy Attorneys General for Defendants and Respondents. INTRODUCTION In this case, we must reconcile a Public Utilities Code provision depriving the superior courts of jurisdiction "to enjoin, restrain, or interfere with the [Public Utilities Commission (commission)] in the performance of its official duties" (Pub. Util. Code, § 1759, subd. (a))1 with a Government Code provision authorizing any interested person to "commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations" of the state's opening meeting law. (Gov. Code, § 11130, subd. (a).) We conclude a person desiring to commence such an action against the commission may only do so by filing a petition for writ of mandate in the Supreme Court or the Court of Appeal.2

BACKGROUND

Masada Disenhouse filed a complaint for an injunction in the superior court to stop members of the commission from proceeding with a meeting in San Diego in March 2013. Disenhouse alleged that, since the commission would not permit her to attend the meeting because of her affiliation with the Sierra Club, the meeting violated the Bagley- Keene Open Meeting Act (Act). (Gov. Code, § 11120 et seq.)

1 Further statutory references are also to the Public Utilities Code unless otherwise stated.

2 Normally, the person would first file the petition in the Court of Appeal and then, if desired, file a petition for review in the Supreme Court. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 15:240.5, p. 15-98.1 (rev. # 1, 2012).) 2 Two days after filing her complaint, Disenhouse brought an ex parte application in the superior court for an injunction requiring the commission to open the meeting to the general public. The commission opposed the application, arguing the superior court did not have jurisdiction to grant the injunction and, regardless, the meeting did not violate the Act.

The superior court agreed it did not have jurisdiction over the matter.

Consequently, it declined to decide whether the meeting would violate the Act and dismissed the complaint.

The same day, Disenhouse filed a "Petition for Review/Application for Injunction"

(some capitalization omitted) with this court seeking essentially the same relief she sought below. We treated the petition as a petition for writ of mandate and summarily denied it. (Disenhouse v. Superior Court (Mar. 19, 2013, D063599).)

DISCUSSION

I

Jurisdiction

A

Overview of the Commission and Limits on Judicial Review " 'The commission is a state agency of constitutional origin with far-reaching duties, functions and powers. [Citation.] 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. [Citation.]

The commission's powers, however, are not restricted to those expressly mentioned in the 3 Constitution: "The Legislature has plenary power, unlimited by the other provisions of this constitution but consistent with this article, to confer additional authority and jurisdiction upon the commission . . . ." [Citation.]' [Citation.]

"Pursuant to this constitutional provision the Legislature enacted, inter alia, the Public Utilities Act. [Citation.] That law vests the commission with broad authority to 'supervise and regulate every public utility in the State' [citation] and grants the commission numerous specific powers for the purpose. Again, however, the commission's powers are not limited to those expressly conferred on it: the Legislature further authorized the commission to 'do all things, whether specifically designated in [the Public Utilities Act] or in addition thereto, which are necessary and convenient' in the exercise of its jurisdiction over public utilities. [Citation.] Accordingly, 'The commission's authority has been liberally construed' [citation], and includes not only administrative but also legislative and judicial powers." (San Diego Gas & Electric Co.

v. Superior Court (1996) 13 Cal.4th 893, 914-915 (Covalt).)

"The Constitution also confers plenary power on the Legislature to 'establish the manner and scope of review of commission action in a court of record' (Cal. Const., art.

XII, § 5). (Covalt, supra, 13 Cal.4th at p. 915.) Consistent with this power, the Legislature enacted statutes authorizing limited review of commission actions by the Supreme Court and Court of Appeal. (§ 1756 et seq.; Covalt, at p. 915.) The Legislature also "made it clear in section 1759 . . . that no other court has jurisdiction either to review or suspend the commission's decisions or to enjoin or otherwise 'interfere' with the commission's performance of its duties." (Covalt, at p. 916.)

4 Specifically, section 1759 provides: "(a) 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. [¶] (b) The writ of mandamus shall lie from the Supreme Court and from the court of appeal to the commission in all proper cases as prescribed in Section 1085 of the Code of Civil Procedure." This section "place[s] the commission, insofar as the state courts are concerned, in the position where it may not be hampered in the performance of any official act by any court, except to the extent and in the manner specified in the code itself." (Pacific Tel. & Tel. Co. v. Superior Court of San Francisco (1963) 60 Cal.2d 426, 430.)

B

Overview of the Act "The purpose of the [Act] . . . is to ensure that 'actions of state agencies be taken openly and that their deliberation be conducted openly.' The [Act] implements this policy by mandating that '[a]ll meetings of a state body shall be open and public . . . ' [citation], by requiring advance public notice of meetings [citation], by authorizing legal actions to prevent threatened violations of the act or declare its applicability to past or threatened future 'actions' of a body [citation], and to declare null and void an 'action taken' in violation of [the Act's open meeting and noticing requirements]." (Southern 5 California Edison Co. v. Peevey (2003) 31 Cal.4th 781, 797 (Peevey).) The Act applies to the Commission. (Ibid.)

Generally, "any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of [the Act] . . . ." (Gov. Code, § 11130, subd. (a).) Additionally, "[a]ny interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of obtaining a judicial determination that an action taken by a state body in violation of [the Act] is null and void . . . ." (Gov. Code, § 11130.3, subd. (a).)

C

Jurisdiction over Action Against Commission to Enforce Act Whether the superior court has subject matter jurisdiction over an action to enforce the Act against the commission is a question of law we independently review. (In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 592.) We are guided in our review by the longstanding rule requiring us to construe the Act and section 1759 "in a manner which harmonizes their language and avoids unnecessary conflict." (Waters v. Pacific Tel. Co. (1974) 12 Cal.3d 1, 11.) Our task is straightforward in this case because a mandamus action may be brought against the commission in the Supreme Court or the Court of Appeal in appropriate cases (§ 1759, subd. (b)), and a mandamus action is one of the available means of enforcing the Act. (Gov. Code, §§ 11130, subd. (a), 11130.3, subd. (a).) Thus, we conclude an interested person desiring to enforce the Act against the commission must do so by filing a petition for writ of mandate in the Supreme Court or 6 the Court of Appeal and may not do so by filing an action for injunctive relief in the superior court. Accordingly, the superior court did not err by dismissing Disenhouse's complaint for lack of subject manner jurisdiction.

Our conclusion does not, as Disenhouse asserts, effectively exempt the commission from the Act's reach. Rather, it respects both the Legislature's aims in placing limits on judicial review of commission actions as well as the Legislature's aims under the Act. (See, e.g., North Pacifica LLC v. California Coastal Com. (2008) 166 Cal.App.4th 1416, 1427-1429 [a petition for writ of mandate is an authorized means of enforcing the Act and is consistent with the Legislature's intent to commence and resolve such enforcement actions promptly].)

Peevey, supra, 31 Cal.4th 781 and California Oregon Power Co. v. Superior Court of Siskiyou County (1955) 45 Cal.2d 858, upon which Disenhouse relies, are both inapposite on this point. Neither case cites section 1759 nor discusses its application.

" ' "[C]ases are not authority for propositions not considered." ' " (McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626; accord, Covalt, supra, 13 Cal.4th at p. 943.) In addition, the Peevey case involved litigation initiated in federal court. (Peevey, at p. 787.) On its face, section 1759 only limits the jurisdiction of state courts. (§ 1759, subd. (a).)

II

Merits of Injunction Application After the superior court determined it lacked subject matter jurisdiction, it declined to decide the merits of Disenhouse's injunction application. We decline to do so as well.

7 The challenged meeting occurred more than a year ago and can no longer be enjoined.

Consequently, the injunction application is moot. "[A]n appeal is moot if ' "the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief." ' " (Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 175.) It would also be anomalous for us to decide the merits of an injunction application after concluding the only remedy available to Disenhouse in this instance is a writ of mandate. Finally, should Disenhouse desire to challenge a similar commission meeting in the future, we have provided guidance on how she may properly do so.

Accordingly, the matter does not fall within the exception to the mootness doctrine for public interest issues capable of repetition, yet evading review. (See, e.g., Fuller v. Bowen (2012) 203 Cal.App.4th 1476, 1483.)

DISPOSITION

The judgment is affirmed. The parties are to bear their own appeal costs.

MCCONNELL, P. J.

WE CONCUR:

NARES, J.

IRION, J.

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