Henricks v. California Public Utilities Commission et al, No. 3:2017cv02177 - Document 16 (S.D. Cal. 2018)

Court Description: ORDER Granting 5 Defendants' Motion to Dismiss for Lack of Jurisdiction; and Denying 6 Defendants' Motion for Sanctions. The Court grants Defendants' motion to dismiss and dismisses Plaintiff's Complaint for lack of subject matter jurisdiction without prejudice and without leave to amend. Additionally, the Court denies Defendants' motion for sanctions. The Clerk of Court is instructed to close the case. Signed by Judge Michael M. Anello on 5/17/2018. (rmc)

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Henricks v. California Public Utilities Commission et al Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 SOUTHERN DISTRICT OF CALIFORNIA Case No.: 17cv2177-MMA (MDD) RUTH HENRICKS, v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION; AND Plaintiff, CALIFORNIA PUBLIC UTILITIES COMMISSION, a California state agency; and MICHAEL PICKER, [Doc. No. 5] Defendants. [Doc. No. 6] DENYING DEFENDANTS’ MOTION FOR SANCTIONS 17 18 Plaintiff Ruth Henricks (“Plaintiff”) filed a Complaint against Defendants 19 California Public Utilities Commission and Michael Picker (collectively, “Defendants”) 20 alleging claims for declaratory and injunctive relief for violations of Plaintiff’s equal 21 protection and due process rights under the Fourteenth Amendment to the United States 22 Constitution. See Doc. No. 1 (hereinafter “Complaint”). Defendants now move to 23 dismiss Plaintiff’s Complaint for lack of jurisdiction pursuant to Federal Rule of Civil 24 Procedure 12(b)(1). See Doc. No. 5. Plaintiff filed an opposition to Defendants’ motion, 25 to which Defendants replied. See Doc. Nos. 7, 9. Defendants also filed a motion for 26 sanctions pursuant to Federal Rule of Civil Procedure 11. See Doc. No. 6. Plaintiff filed 27 an opposition to Defendants’ motion for sanctions, to which Defendants replied. See 28 Doc. Nos. 10, 14. The Court found both matters suitable for determination on the papers -1- 17cv2177-MMA (MDD) Dockets.Justia.com 1 and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. Nos. 13, 15. 2 For the reasons set forth below, the Court GRANTS Defendants’ motion to dismiss, and 3 DENIES Defendants’ motion for sanctions. 4 5 BACKGROUND Plaintiff is an individual residing in the County of San Diego. Complaint ¶ 13. 6 Plaintiff is a San Diego Gas & Electric (“SDG&E”) customer and ratepayer. Id. 7 Defendant California Public Utilities Commission (“Commission” or “CPUC”) is an 8 agency of the State of California. Id. ¶ 14. The Commission has authority over public 9 utility practices, facilities, and retail rates under the California Constitution and 10 California’s Public Utilities Code. See Cal. Const., art. XII; Cal. Pub. Util. Code §§ 451, 11 701. SDG&E is a public utility subject to the Commission’s jurisdiction. See Cal. Pub. 12 Util. Code § 216(a) (defining public utility). Defendant Michael Picker (“Picker”) is the 13 President of the Commission. Complaint ¶ 18. 14 Beginning on October 21, 2007, SDG&E equipment ignited the destructive Witch, 15 Guejito, and Rice fires in San Diego County. Id. ¶ 28. In September 2015, SDG&E 16 “initiated a reasonableness review of its uninsured 2007 fire losses in proceeding A.15- 17 09-010.”1 Id. ¶ 5. In this proceeding, the Commission is tasked with “determin[ing] 18 whether SDG&E imprudently operated its electricity equipment when that equipment 19 started the San Diego fires of 2007. SDG&E claimed it acted prudently and therefore 20 was entitled to recover, from its ratepayers and fire victim[s], losses of $379,000,000 21 claimed to have been incurred beyond that covered by SDG&E’s insurance.” Id. ¶ 3. 22 Plaintiff filed a motion for party status in October 2015, which the Commission granted 23 in February 2016. Id. ¶ 5. 24 25 26 27 28 In April 2016, the assigned Administrative Law Judge (“ALJ”) “issued a Scoping 1 SDG&E initiated a similar proceeding several years prior seeking recovery related to the 2007 fires. See id. ¶ 4. The Commission “denied SDG&E any recovery in the first proceeding (A.09-080-20) on 28 December 2012.” Id. Moreover, the Commission ruled that “any future SDG&E fire cost recovery proceedings would be subject to a ‘reasonableness review.’” Id. -2- 17cv2177-MMA (MDD) 1 Ruling that implemented a two-phase approach” for proceeding A.15-09-010. Id. ¶ 6. In 2 the first phase, the ALJ tasked the parties with addressing “[w]hether SDG&E’s 3 operation, engineering and management of the facilities alleged to have been involved in 4 the ignition of the fires was reasonable.” Id. Proceeding A.15-09-010 was reassigned to 5 ALJ Pat Tsen and ALJ Pro Tem Sasha Goldberg in October 2016. Id. ¶ 8. In January 6 2017, evidentiary hearings related to this proceeding were held in San Francisco. Id. 7 “The record for Phase 1 of this proceeding was submitted for . . . consideration on 6 July 8 2017.” Id. 9 On August 22, 2017, ALJs Tsen and Goldberg issued a decision finding that 10 SDG&E did not reasonably manage and operate its facilities prior to the 2007 San Diego 11 fires, thereby denying SDG&E’s request to recover costs. See id. ¶ 9. The Commission 12 was “scheduled to approve the ALJs’ proposed decision denying SDG&E any further 13 2007 fire cost recovery” on September 28, 2017, at the Commission’s meeting in Chula 14 Vista. Id. ¶ 10. The Commission, however, did not issue its decision at the September 15 28, 2017 meeting. Rather, the Commission allegedly deliberately delayed voting on the 16 decision “so as to provide an opportunity for SDG&E and its utilities monopoly kin . . . to 17 meet privately with the Commissioners and lobby against the ALJs’ proposed 18 decision[.]” Id. ¶ 11. 19 Plaintiff alleges that the Commission “engaged in a series of actions in violation of 20 the due process and equal protection clauses of the 14th Amendment to the United States 21 Constitution, all of which were aimed at denying SDG&E utility customers the benefit of 22 the 22 August 2017 decision.” Id. ¶ 36. Specifically, on September 5 and 6, 2017, 23 SDG&E representatives “had five individual Ex Parte communications in meetings with 24 CPUC Commissioner advisers.” Id. ¶ 37. In these meetings, SDG&E representatives 25 requested that the proposed decision by the ALJs “not be adopted by the Commission 26 because it commits legal error by failing to address the critical legal issue of the 27 relationship between inverse condemnation and cost recovery, does not correctly apply 28 the reasonableness standard, and contains factual errors in its review of and conclusions -3- 17cv2177-MMA (MDD) 1 regarding the record evidence[.]” Id. ¶ 39. Thus, the SDG&E representatives requested 2 that the Commission “permit SDG&E to spread the San Diego 2007 fire losses through 3 rates.” Id. ¶ 41. 4 Additionally, on September 11, 2017, Pacific Gas & Electric (“PG&E”) and 5 Southern California Edison (“SCE”) “filed for party status” in the A.15-09-010 6 proceeding and sought leave to submit comments. Id. ¶ 45. On September 26, 2017, the 7 Commission, under Picker’s discretion, granted party status to PG&E and SCE “for the 8 limited purpose of filing comments on the legal issue of inverse condemnation from the 9 existing record.” Id. ¶ 48. Plaintiff claims that the issue of inverse condemnation is 10 outside the scope of the evidentiary hearing; thus, Plaintiff “objected in writing to 11 SDG&E’s insertion of the inverse condemnation in the proceedings post trial.” Id. ¶¶ 49, 12 51. The Commission granted PG&E and SCE permission to file comments on the 13 inverse condemnation issue by October 4, 2017. See id. ¶ 54. On October 4, 2017, 14 PG&E “filed for itself and for SCE a pleading in A.15-09-010 that improperly inserted 15 the inverse condemnation issue into the case.” Id. ¶ 55. 16 As a result, Plaintiff commenced the instant action on October 24, 2017, alleging 17 that in violation of her rights, the Commission has “decided to relieve SDG&E from the 18 proposed decision that makes SDG&E, and not the ratepayers, bear the costs of the fires 19 for which they were found to have acted unreasonably and imprudently.” Id. ¶ 59. In her 20 prayer for relief, Plaintiff requests the Court issue an order declaring that Defendants 21 “violated fundamental principles of the Due Process and Equal Protection2 Clauses of the 22 United States Constitution” and declaring that Defendants “violated the statutory, 23 contractual, and Constitutional rights of Plaintiff.” Complaint at 21. Moreover, Plaintiff 24 requests the Court enjoin Defendants from seeking to enforce “a decision to charge 25 26 27 28 2 Notably, Plaintiff does not elaborate in her Complaint or opposition to Defendants’ motion to dismiss the basis for the alleged violations of the Equal Protection Clause of the United States Constitution. -4- 17cv2177-MMA (MDD) 1 ratepayers with any part of the $379 million for the SDG&E 2007 fires[.]” Id. 2 Defendants contend that Plaintiff’s claims are now moot in light of the Commission’s 3 November 30, 2017 decision denying SDG&E rate recovery for the costs of the 2007 4 Witch, Guejito, and Rice fires. See Doc. No. 5-1. Defendants have also filed a motion 5 for sanctions against Plaintiff’s attorneys, arguing that “[n]o reasonable attorney would 6 continue to prosecute a lawsuit that was so obviously non-justiciable.” Doc. No. 6-1. 7 The Court addresses Defendants’ motions in turn. 8 9 DEFENDANTS’ MOTION TO DISMISS A. Legal Standard 10 1. 11 Generally, a court must take judicial notice if a party requests it and supplies the Judicial Notice 12 court with the requisite information. Fed. R. Evid. 201(d). “A judicially noticed fact 13 must be one not subject to reasonable dispute in that it is either (1) generally known 14 within the territorial jurisdiction of the trial court or (2) capable of accurate and ready 15 determination by resort to sources whose accuracy cannot reasonably be questioned.” 16 Fed. R. Evid. 201(b); see Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th 17 Cir. 1986) (citing Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 18 (9th Cir. 1956)). While a court may take judicial notice of matters of public record, it 19 may not take judicial notice of a fact that is subject to reasonable dispute. Fed. R. Evid. 20 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). 21 2. 22 “Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and 23 ‘controversies.’” Campbell-Ewald Co. v. Gomez, — U.S. —, 136 S. Ct. 663, 669 (2016). 24 “Thus, ‘[t]o qualify as a case fit for federal-court adjudication, an actual controversy must 25 be extant at all stages of review, not merely at the time the complaint is filed.’” 26 Hamamoto v. Ige, 881 F.3d 719, 722 (9th Cir. 2018) (quoting Davis v. Fed. Election 27 Comm’n, 554 U.S. 724, 732-33 (2008)). 28 Rule 12(b)(1) “Lack of standing is a defect in subject-matter jurisdiction and may be properly -5- 17cv2177-MMA (MDD) 1 challenged under [Federal] Rule [of Civil Procedure] 12(b)(1).” Wright v. Incline Village 2 Gen. Imp. Dist., 597 F. Supp. 2d 1191, 1199 (D. Nev. 2009) (citing Bender v. 3 Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). Pursuant to Rule 12(b)(1), a 4 party may seek dismissal of an action for lack of subject matter jurisdiction “either on the 5 face of the pleadings or by presenting extrinsic evidence.” Warren v. Fox Family 6 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003); see also White v. Lee, 227 F.3d 7 1214, 1242 (9th Cir. 2000). Where the party asserts a facial challenge, the court limits its 8 inquiry to the allegations set forth in the complaint. Safe Air for Everyone v. Meyer, 373 9 F.3d 1035, 1039 (9th Cir. 2004). “If the challenge to jurisdiction is a facial attack . . . the 10 plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion 11 is made.” San Luis & Delta-Mendota Water Auth. v. U.S. Dep’t of the Interior, 905 F. 12 Supp. 2d 1158, 1167 (E.D. Cal. 2012) (internal citation and quotation omitted). “Lack of 13 standing is a defect in subject-matter jurisdiction and may be properly challenged under 14 Rule 12(b)(1).” Wright v. Incline Village Gen. Imp. Dist., 597 F. Supp. 2d 1191, 1199 15 (D. Nev. 2009) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 16 (1986)). 17 B. Analysis 18 1. 19 As an initial matter, Defendants and Plaintiff have filed separate requests for Requests for Judicial Notice 20 judicial notice. See Doc. Nos. 5-2, 7-4. Specifically, Defendants request the Court take 21 judicial notice of the Commission’s November 30, 2017 order denying SDG&E rate 22 recovery for the costs of the 2007 Witch, Guejito, and Rice fires (Exhibit A). See Doc. 23 No. 5-2 (hereinafter “DRJN”). Plaintiff did not file an opposition to Defendants’ request 24 for judicial notice. In fact, Plaintiff also requests that the Court take judicial notice of 25 excerpts from the Commission’s order. See Doc. No. 7-4 at 3. Because the 26 Commission’s decision is a publicly available document, and not subject to reasonable 27 dispute, the Court GRANTS Defendants’ request for judicial notice as to Exhibit A. See 28 W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1192 n.4 (9th Cir. 2008) (“We take -6- 17cv2177-MMA (MDD) 1 judicial notice of the [C]PUC’s order because its existence is ‘capable of accurate and 2 ready determination by resort to sources whose accuracy cannot reasonably be 3 questioned.’” (quoting Fed. R. Evid. 201(b); Nugget Hydroelectric, L.P. v. Pac. Gas & 4 Elec. Co., 981 F.2d 429, 435 (9th Cir. 1992)). 5 Plaintiff requests the Court take judicial notice of fourteen (14) documents 6 (Exhibits 1-14) in support of her opposition to the motion to dismiss. See Doc. No. 7-4. 7 Specifically, Plaintiff requests the Court take judicial notice of excerpts of the 8 Commission’s order, various emails, CPUC documents, state court records, an order from 9 the 9th Circuit relating to the San Onofre nuclear plant proceedings, pleadings, 10 newspaper articles, and SCE and PG&E’s application for rehearing in Proceeding A.15- 11 09-010. Aside from the Commission’s November 2017 order which the Court has 12 already taken judicial notice of, the Court does not rely on these exhibits in reaching its 13 conclusion below. As such, the Court DENIES AS MOOT Plaintiff’s request for 14 judicial notice. 15 2. 16 Defendants move to dismiss Plaintiff’s claims for injunctive and declaratory relief Defendants’ Motion to Dismiss 17 as moot. See Doc. No. 5-1. Specifically, Defendants indicate that “[o]n November 30, 18 2017, by a 5-0 vote, the Commission confirmed the draft decision and denied SDG&E’s 19 application.” Id. at 4; see also DRJN. The Commission found that SDG&E “did not 20 reasonably manage and operate its facilities prior to the 2007 Southern California 21 Wildfires” and that rate recovery was therefore inappropriate. DRJN at 2. The 22 Commission further noted that “[t]his proceeding is closed.” Id. Thus, Defendant 23 contends that “[b]ecause the Commission has already concluded its administrative 24 proceeding in a manner entirely favorable to [Plaintiff], [her] claims [for injunctive and 25 declaratory relief] are moot.” Doc. No. 5-1 at 4. 26 Plaintiff alleges that the Commission has permitted SCE and PG&E to file a joint 27 application for rehearing on January 2, 2018. See Doc. No. 7 at 5. As such, Plaintiff 28 maintains that her claims are not moot as the Commission “must now determine whether -7- 17cv2177-MMA (MDD) 1 to grant or deny the rehearing and in so doing, provide the legal and factual grounds for 2 its decision.” Id.; see also Cal. Code Regs. tit. 20, § 16.1. 3 a. Plaintiff’s Claim for Injunctive Relief is Moot 4 Defendants assert that Plaintiff’s request for injunctive is moot because the 5 Commission has already denied rate recovery. As such, Plaintiff “has received all of the 6 relief she could get through her proposed injunction[.]” Doc. No. 5-1 at 5. In opposition, 7 Plaintiff asserts “[t]he case is not over; it has entered the ‘rehearing’ stage.” Doc. No. 7 8 at 1. 9 “Mootness can be characterized as the doctrine of standing set in a time frame: The 10 requisite personal interest that must exist at the commencement of the litigation 11 (standing) must continue throughout its existence (mootness).” Cook Inlet Treaty Tribes 12 v. Shalala, 166 F.3d 986, 989 (9th Cir. 1999) (internal quotation marks omitted). 13 “[F]ederal courts have no jurisdiction to hear a case that is moot, that is, where no actual 14 or live controversy exists.” Id. “If there is no longer a possibility that an appellant can 15 obtain relief for his claim, that claim is moot and must be dismissed for lack of 16 jurisdiction.” Ruvalcaba v. City of L.A., 167 F.3d 514, 521 (9th Cir. 1999). When the 17 issues presented are no longer live or the parties lack a cognizable interest in the 18 outcome, the action fails to contain a “case or controversy” under Article III of the United 19 States Constitution. See In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005) (citation 20 omitted); U.S. Const. art. 3, § 2. “The mootness doctrine ‘requires that an actual, 21 ongoing controversy exist at all stages of federal court proceedings.’” Leigh v. Salazar, 22 677 F.3d 892, 896 (9th Cir. 2012). “As long as the parties have a concrete interest, 23 however small, in the outcome of the litigation, the case is not moot.” Chafin v. Chafin, 24 568 U.S. 165, 172 (2013) (internal quotation marks omitted). 25 Here, Plaintiff initially requested that the Court enjoin Defendants from seeking to 26 enforce “a decision to charge ratepayers with any part of the $379 million for the 27 SDG&E 2007 fires, or to act as described in Plaintiff’s claim for declaratory relief.” 28 Complaint at 21. Defendants claim Plaintiff’s claim is moot because on November 30, -8- 17cv2177-MMA (MDD) 1 2017, the Commission “denie[d] [SDG&E’s] request to recover costs recorded in its 2 Wildfire Expense Memorandum Account.” DRJN at 2. Plaintiff concedes as much in 3 requesting that the Court “look beyond the mere fact of the CPUC’s issuance of a final 4 decision.” Doc. No. 7 at 6 (emphasis added). Thus, Plaintiff has already obtained the 5 original relief requested. 6 Plaintiff now requests that the Court enjoin the Commission “from adopting a 7 decision other than the one [already] reached by the CPUC . . . .” Id. at 2. Specifically, 8 in her opposition to the instant motion, Plaintiff expands her request for relief, suggesting 9 that the Court “could . . . provide declaratory and injunctive relief preventing injury to 10 plaintiffs’ due process rights on a going forward basis by requiring” the Commission to: 11 (1) remove SCE and PG&E as parties to the proceeding, (2) no longer consider any 12 arguments raised by these parties, including inverse condemnation, and (3) deny SCE and 13 PG&E’s request for rehearing. Id. at 5. Plaintiff, however, fails to show she is under the 14 threat of suffering a concrete and particularized injury in fact that is not speculative or 15 hypothetical for several reasons. See Summers v. Earth Island Inst., 555 U.S. 488, 493 16 (2009). 17 First, in its decision denying SDG&E’s application for relief, the Commission 18 expressly stated, “[t]his proceeding is closed.” DRJN at 2. CPUC decisions are final 19 when they are issued. See Cal. Pub. Util. Code § 1735 (indicating that an application for 20 rehearing does “not excuse any corporation or person from complying with and obeying 21 any order or decision” of the commission). Second, the Commission explained that 22 “Inverse Condemnation was not a material issue in Phase 1 and did not merit a dedicated 23 discussion. Notably, even SDG&E withdrew its testimony concerning Inverse 24 Condemnation for purposes of Phase 1.” DRJN at 65 (emphasis added). Third, whether 25 the Commission at some point in the future grants the request for a rehearing, and then 26 reverses its November 2017 decision is entirely speculative. Pursuant to Section 27 1731(b)(1) of the California Public Utility Code, “[a]fter an order or decision has been 28 made by the commission, a party . . . may apply for a rehearing in respect to matters -9- 17cv2177-MMA (MDD) 1 determined in the action or proceeding and specified in the application for rehearing.” 2 Cal. Pub. Util. Code § 1731(b)(1). “The commission may grant and hold a rehearing on 3 those matters, if in its judgment sufficient reason is made to appear.” Cal. Pub. Util. 4 Code § 1731(b)(1) (emphasis added). As such, Plaintiff fails to point to any “actual and 5 imminent” threat that is not “conjectural or hypothetical.” Summers, 555 U.S. at 493. 6 The Supreme Court has made clear that “[p]ast exposure to illegal conduct does not in 7 itself show a present case or controversy regarding injunctive relief . . . if unaccompanied 8 by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 9 (1974). 10 Accordingly, in light of the Commission’s 5-0 decision denying SDG&E’s 11 application, and Plaintiff’s failure to point to continuing, present adverse effects, 12 Plaintiff’s claim for injunctive relief is moot. See Chen v. Allstate Ins. Co., 819 F.3d 13 1136, 1142 (9th Cir. 2016) (noting that “[w]hen a plaintiff has received ‘all the relief [he] 14 could win on the merits,’ an adjudication would have ‘no consequences on remaining 15 related disputes between the parties’ and ‘nothing further would be ordered by the court, 16 there is no point in proceeding to decide the merits.’”) (quoting 13B Charles Alan Wright 17 & Arthur R. Miller, Federal Practice and Procedure § 3533.2 (3d ed. 2015)). 18 b. Plaintiff’s Claim for Declaratory Relief is Moot 19 Defendants further claim that Plaintiff’s request for declaratory relief is moot 20 because “[e]ven assuming the Commission violated Henricks’ procedural rights, there are 21 no future adverse effects flowing from that violation that this Court could remedy.” Doc. 22 No. 5-1 at 7. Plaintiff, in opposition, contends “the original requested relief of injunctive 23 and declaratory relief to prevent any of the $379 million at stake in the administrative 24 proceeding at issue being assessed against ratepayers remains available.” Doc. No. 7 at 25 8. 26 The Ninth Circuit has indicated that “where, as here, both injunctive and 27 declaratory relief are sought but the request for injunctive relief is rendered moot, the 28 case is not moot if declaratory relief would nevertheless provide meaningful relief.” Ctr. -10- 17cv2177-MMA (MDD) 1 For Biological Diversity v. Lohn, 511 F.3d 960, 964 (9th Cir. 2007). The test for 2 mootness when a plaintiff seeks declaratory relief is “whether the facts alleged, under all 3 the circumstances, show that there is a substantial controversy, between parties having 4 adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a 5 declaratory judgment.” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1174-75 6 (9th Cir. 2002) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)). 7 “Stated another way, the ‘central question’ before [the court] is ‘whether changes in the 8 circumstances that prevailed at the beginning of litigation have forestalled any occasion 9 for meaningful relief.’” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th 10 Cir. 2005) (en banc) (quoting West v. Sec'y of the Dep't of Transp., 206 F.3d 920, 925 n. 11 4 (9th Cir. 2000)). 12 Here, Plaintiff requests that the Court declare that: (1) Defendants violated 13 fundamental principles of the Due Process and Equal Protection Clauses of the United 14 States Constitution; and (2) Defendants violated the statutory, contractual, and 15 Constitutional rights of Plaintiff. See Complaint at 21. Plaintiff summarily concludes 16 that “[b]ecause of the availability of relief as to future conduct in the administrative 17 proceeding at issue, the case is not moot.” Doc. No. 7 at 6 (emphasis added). The Court 18 is not persuaded. 19 As Defendants note, even assuming Defendants violated Plaintiff’s procedural due 20 process rights, there are no concrete future adverse effects flowing from such a violation 21 that the Court could remedy. The Commission issued its decision, and the proceeding is 22 closed. See DRJN at 2. Whether the Commission will grant SCE and PG&E’s joint 23 application for rehearing is unclear. Even assuming that the Commission grants the 24 application for a rehearing, Plaintiff does not contest that she has the right to participate 25 in the rehearing through written briefing and oral argument. See Cal. Code Regs., tit. 20, 26 §§ 16.1(d), 16.3(b), 16.4(f). Plaintiff’s argument that the alleged due process violations 27 will taint the administrative proceeding going forward is “speculative at best;” thus, the 28 Court “lack[s] the power to grant any effective relief.” Feldman v. Bomar, 518 F.3d 637, -11- 17cv2177-MMA (MDD) 1 643 (9th Cir. 2008); see also Ctr. For Biological Diversity, 511 F.3d at 964 (“That the 2 DPS Policy might adversely affect the Southern Resident’s endangered species status or 3 the Service’s listing determination of certain other killer whale populations at some 4 indeterminate time in the future is too remote and too speculative a consideration to save 5 this case from mootness.”) (emphasis in original). 6 Accordingly, because there is no present controversy as to which effective relief 7 can be granted, the Court finds that Plaintiff’s claim for declaratory relief is moot. See 8 Feldman, 518 F.3d at 643 (indicating that a claim for declaratory relief is moot when the 9 alleged future harm is “so remote and speculative that there is no tangible prejudice to the 10 existing interests of the parties”) (internal citations and quotation marks omitted) 11 (emphasis in original). 12 3. 13 In sum, the Court finds that Plaintiff’s claims for injunctive and declaratory relief Conclusion 14 are moot. The Commission issued its final decision on November 30, 2017, and the case 15 is closed. Plaintiff’s arguments regarding the application for rehearing are speculative 16 and hypothetical.3 Accordingly, the Court GRANTS Defendants’ motion to dismiss. 17 18 19 20 21 22 23 24 25 26 27 28 3 Plaintiff argues for the first time in her opposition to Defendants’ motion for sanctions that two exceptions to the mootness doctrine apply. Specifically, Plaintiff asserts that her “Complaint validly alleges the existence of collateral injuries and voluntary cessation, both established exceptions to the doctrine of mootness.” Doc. No. 10 at 1. Despite the fact that Plaintiff could have raised these arguments in her opposition to Defendants’ motion to dismiss, Plaintiff failed to do so. Even if the Court were to consider such arguments, neither exception is applicable here. The collateral injury exception to the mootness doctrine applies when a plaintiff continues to suffer collateral legal consequences after the plaintiff’s primary injury has been resolved. See In re Burrell, 415 F.3d at 998. Because Plaintiff’s argument regarding the rehearing and other future proceedings is speculative, this exception does not apply. See id. (noting that a plaintiff “may not invoke” this exception “when such harm is merely hypothetical and speculative.”). Moreover, the voluntary cessation exception to the mootness doctrine applies if a defendant voluntarily halts an offending practice, but is free to resume it at any time. See U.S. v. W.T. Grant Co., 345 U.S. 629, 632 (1953). Here, it is not Defendants’ voluntary conduct that moots Plaintiff’s claims, nor do Defendants contend that they engaged in any voluntary conduct that moots such claims. See Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (“[O]ur cases have explained that a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”) (internal quotation marks omitted) (emphasis added)). Rather, the -12- 17cv2177-MMA (MDD) 1 DEFENDANTS’ MOTION FOR SANCTIONS 2 Defendants request that the Court sanction Plaintiff’s attorneys, Mr. Michael 3 Aguirre and Ms. Maria Severson, in the amount of $1,000 each. See Doc. No. 6-1. 4 Defendants contend that “[n]o reasonable attorney would continue to prosecute a lawsuit 5 that was so obviously non-justiciable.” Id. at 1. In opposition, Plaintiff’s counsel claims 6 that the Complaint is neither frivolous nor filed for an improper purpose. See Doc. No. 7 10. 8 A. 9 Legal Standard Federal Rule of Civil Procedure 11 states in pertinent part that when an attorney 10 presents a signed paper to a court, that attorney is certifying to the best of his or her 11 “knowledge, information and belief, formed after an inquiry reasonable under the 12 circumstances” that: 13 14 15 16 17 18 19 20 21 22 23 24 (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. Fed. R. Civ. P. 11(b)(1)-(4). Sanctions under Rule 11 are warranted when a party files a lawsuit or motion that 25 is frivolous, legally unreasonable, without factual foundation, or is otherwise brought for 26 27 28 Commission issued a decision, as required by CPUC regulations, on the ALJ’s proposed decision in favor of Plaintiff. Therefore, both exceptions relied on by Plaintiff are inapplicable. -13- 17cv2177-MMA (MDD) 1 an improper purpose. Warren v. Guelker, 29 F.3d 1386, 1388 (9th Cir. 1994) (citing 2 Conn v. Borjorquez, 967 F.3d 1418, 1420 (9th Cir. 1992); Operating Eng’rs Trust v. A-C 3 Co., 859 F.2d 1336, 1344 (9th Cir. 1988)). A filing is “frivolous” when it is “both 4 baseless and made without a reasonable and competent inquiry.” Townsend v. Holman 5 Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1992). Either improper purpose or 6 frivolousness is sufficient to sustain a sanction. Id. 7 When one party seeks sanctions against another, the Court must first determine 8 whether any provision of Rule 11(b) has been violated. Warren, 29 F.3d at 1389. A 9 finding of subjective bad faith is not required under Rule 11. See Smith v. Ricks, 31 F.3d 10 1478, 1488 (9th Cir. 1994) (quoting Zuniga v. United Can Co., 812 F.2d 443, 452 (9th 11 Cir. 1987)) (“Counsel can no longer avoid the sting of Rule 11 sanctions by operating 12 under the guise of a pure heart and empty head.”). “Instead, the question is whether, at 13 the time the paper was presented to the Court (or later defended) it lacked evidentiary 14 support or contained ‘frivolous’ legal arguments.” Odish v. CACH, LLC, No. 12-CV- 15 1710-AJB (DHB), 2012 WL 5382260, at *3 (S.D. Cal. Nov. 1, 2012). Where such a 16 violation is found, Rule 11 provides that “the court may impose an appropriate sanction 17 on any attorney, law firm, or party that violated the rule or is responsible for the 18 violation.” Fed. R. Civ. P. 11(c)(1) (emphasis added). 19 B. Analysis 20 1. 21 Plaintiff requests the Court take judicial notice of twenty-one (21) documents in Plaintiff’s Request for Judicial Notice 22 support of her opposition to the instant motion (Exhibits 1-21). See Doc. No. 10-5. 23 Specifically, Plaintiff requests the Court take judicial notice of various transcripts, emails, 24 newspaper articles, press releases, the proposed decision in CPUC proceeding 15-09-010, 25 a Ninth Circuit opinion related to the San Onofre nuclear plant proceedings, and a denial 26 of party status in the San Onofre proceedings. See id. The Court need not rely on these 27 documents in reaching its conclusion below. Accordingly, the Court DENIES AS 28 MOOT Plaintiff’s request for judicial notice as to Exhibits 1-21. -14- 17cv2177-MMA (MDD) 1 Plaintiff further requests the Court take judicial notice of the Commission’s motion 2 to dismiss in this case, Plaintiff’s opposition to the motion to dismiss, and Plaintiff’s 3 Complaint. See id. The Court need not take judicial notice of pleadings filed on the 4 docket in this case. Cf. Asdar Grp. V. Pillsbury, Madison & Sutro, 99 F.3d 289, 290 n.1 5 (9th Cir. 1996) (noting that a court may take judicial notice of pleadings and court orders 6 in related proceedings) (emphasis added). As such, the Court DENIES AS MOOT 7 Plaintiff’s request for judicial notice as to the documents filed on the docket in this case. 8 2. 9 Defendants contend that sanctions under Rule 11 are warranted because: (1) Defendants’ Motion for Sanctions 10 Plaintiff’s Complaint is frivolous; and (2) the Complaint was brought for an improper 11 purpose. The Court addressed Defendants’ arguments in turn. 12 Here, upon review of Plaintiff’s Complaint, the Court finds that sanctions are not 13 warranted. First, the Court finds that Plaintiff’s Complaint is not frivolous. At the time 14 Plaintiff filed her Complaint, the Commission had not yet issued its decision. Defendants 15 argue that Plaintiff’s counsel should have dismissed the Complaint once the Commission 16 issued its decision. However, Plaintiff maintains that the Court can still provide 17 injunctive and declaratory relief because exceptions to the mootness doctrine apply. See 18 Doc. No. 10 at 16-17. While the Court disagrees with Plaintiff and concludes that her 19 claims are moot, the Court is not persuaded that Plaintiff’s claims are baseless. This is 20 not a case in which Plaintiff’s counsel filed a Complaint that they should have known 21 was frivolous “in the face of previous dismissals involving the exact same parties under 22 the same legal theories.” Warren, 29 F.3d at 1390 (quoting Kurkowski v. Volcker, 819 23 F.2d 201, 204 (8th Cir. 1987)). Therefore, because the Court finds that Plaintiff’s 24 Complaint is not baseless, the Court need not address whether counsel conducted a 25 reasonable inquiry. See Townsend, 929 F.2d at 1362 (noting that a filing is frivolous only 26 when it is “both baseless and made without a reasonable and competent inquiry.”) 27 (emphasis added). 28 -15- 17cv2177-MMA (MDD) 1 Second, the Court finds that Plaintiff’s Complaint was not filed for an improper 2 purpose. Defendants present no evidence, aside from arguing that Plaintiff’s claims are 3 moot, that Plaintiff filed her Complaint to “harass or to cause unnecessary delay or 4 needless increase in the cost of litigation.” G.C. & K.B. Invs., Inc. v. Wilson, 326 F.3d 5 1096, 1110 (9th Cir. 2003). To the contrary, at the time Plaintiff commenced the instant 6 action, the Commission had not yet issued its decision. Moreover, Plaintiff asserts that 7 the Court can still provide injunctive and declaratory relief. See Doc. No. 10 at 16-17. 8 While the Court ultimately disagrees with Plaintiff’s arguments, the Court finds that 9 Plaintiff’s Complaint was not filed for an improper purpose. 10 3. 11 Accordingly, because the Court finds that Plaintiff’s Complaint is not frivolous, Conclusion 12 and that Plaintiff’s Complaint was not filed for an improper purpose, the Court DENIES 13 Defendants’ motion for sanctions. 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -16- 17cv2177-MMA (MDD) 1 2 CONCLUSION Based on the foregoing, the Court GRANTS Defendants’ motion to dismiss and 3 DISMISSES Plaintiff’s Complaint for lack of subject matter jurisdiction without 4 prejudice4 and without leave to amend. See Hamamoto v. Ige, No. 14-CV-491 DKW, 5 2015 WL 770346, at *9 n.6 (D. Haw. Feb. 23, 2015) (denying the plaintiff’s request for 6 leave to amend where the plaintiff’s claims are moot because it would be futile to allow 7 an amended complaint that lacks subject matter jurisdiction), aff’d, 881 F.3d 719 (9th Cir. 8 2018). Additionally, the Court DENIES Defendants’ motion for sanctions. The Clerk of 9 Court is instructed to close the case. 10 11 IT IS SO ORDERED. 12 13 Dated: May 17, 2018 14 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 “Dismissals for lack of jurisdiction ‘should be . . . without prejudice so that a plaintiff may reassert his claims in a competent court.’” Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999) (quoting Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988)). -17- 17cv2177-MMA (MDD)

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