SAN DIEGO GAS ELECTRIC COMPANY v. COVALT (1995)

OPINION

Martin and Joyce Covalt filed suit against San Diego Gas and Electric (SDG & E) claiming that dangerously high levels of electric and magnetic fields (EMF's) emitted from power lines adjacent to their home had caused them emotional distress, made their home uninhabitable and destroyed its market value.   SDG & E's demurrer was overruled.   It petitions this court for writs of prohibition and mandate to compel the trial court to sustain its demurrer and dismiss the complaint.   It contends the California Public Utilities Commission (PUC) has exclusive jurisdiction under Public Utilities Code section 1759 ¹ over the issues raised by the complaint.   We agree and grant a writ of mandate ordering the trial court to sustain SDG & E's demurrer without leave to amend.

 The Covalts filed their complaint against SDG & E on December 16, 1993.²  It alleged that an SDG & E power line easement, on which it maintained high voltage transmission lines, distribution and feeder equipment lines, and step down transformers, ran adjacent to their single family residence in San Clemente.³  In February 1990, SDG & E modified the power lines increasing the EMF levels on the Covalts' property.⁴  There were no allegations that SDG & E failed to construct or maintain the equipment in compliance with PUC guidelines.

The complaint alleged nine causes of action against SDG & E.   The first five were essentially for personal injury as they each pertain to allegations that the Covalts have been exposed to “unreasonably high” levels of EMF's, that persons exposed to EMF's have an “elevated risk” of contracting cancer or other similar diseases and the Covalts have suffered injury as a result of the exposure.⁵  There are no allegations that the Covalts have any present physical injuries as a result of exposure to EMF's;  rather they allege their fear of contracting cancer in the future is their injury.   A “medical monitoring” cause of action alleges the Covalts and their children will incur ongoing medical expenses to monitor them for diseases.   Intentional and negligent infliction of emotional distress causes of action allege that by exposing the Covalts to increased levels of EMF's, SDG & E caused them emotional harm, nervousness and loss of sleep.   Strict and negligent products liability causes of action allege the delivery of electricity is the sale of a product, the Covalts used the product in the manner intended, the product was defective because it contains EMF's which can cause cancer and other life threatening diseases and the Covalts suffered injury as a result of using the product.

The Covalts' complaint also alleges three causes of action relating to damage to their real property as a result of the presence of the power lines.   A trespass cause of action alleges SDG & E is emitting EMF's onto their property without their consent, making it unsafe and uninhabitable and reducing its value.   A nuisance cause of action alleges the emission of EMF's onto their property injured their health and enjoyment of their property constituting a nuisance under Civil Code section 3479.   An inverse condemnation cause of action alleges SDG & E, as a public utility, can condemn land for the public good in providing electricity.   Its construction of power lines adjacent to the Covalts' property caused their property to be exposed to EMF's.   Local zoning laws make the property usable for no other purpose but residential.   However, the EMF's have made the property unfit for human habitation, resulting in a taking of the property without compensation.   Finally, the Covalts pleaded a cause of action for injunctive relief compelling SDG & E to discontinue emitting EMF's onto their property.

SDG & E demurred to the complaint contending the PUC had exclusive jurisdiction to decide issues concerning health hazards posed by EMF's and the steps, if any, utilities should take to reduce EMF levels or decrease human exposure to them.   The demurrer was overruled.   We granted an alternative writ to consider the issues raised by SDG & E's demurrer and stayed all proceedings in the trial court.

I

Extraordinary Relief is Warranted

 SDG & E seeks a writ of mandate or a writ of prohibition directing the trial court to sustain its demurrer and dismiss the complaint.   We must determine whether the legal remedy is inadequate before addressing the merits of the petition.  (Code Civ.Proc., § 1086;  Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 637, 9 Cal.Rptr.2d 216.)

 An order overruling a demurrer is not appealable, and generally review is obtained on appeal from the final judgment.  (County of Santa Barbara v. Superior Court (1971) 15 Cal.App.3d 751, 754, 93 Cal.Rptr. 406.)   That remedy is normally presumed to be adequate.  (Hansra v. Superior Court, supra, 7 Cal.App.4th at p. 638, 9 Cal.Rptr.2d 216.)   However, such an order can be reviewed by prohibition when it raises a question of jurisdiction.  (County of Santa Barbara v. Superior Court, supra, 15 Cal.App.3d at pp. 754–755, 93 Cal.Rptr. 406;  Pacific Tel. & Tel. Co. v. Superior Court (1963) 60 Cal.2d 426, 430, 34 Cal.Rptr. 673, 386 P.2d 233.)   Additionally, mandamus will lie when it will prevent “a needless and expensive trial and reversal.”  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854;  see also Hansra v. Superior Court, supra, 7 Cal.App.4th at p. 638, 9 Cal.Rptr.2d 216.)

 SDG & E points out that it has already defended itself in two virtually identical lawsuits prosecuted by the same plaintiffs' attorneys.   Both resulted in defense judgments.   One case was not appealed.  (Zuidema v. SDG & E (Super.Ct.San Diego County, 1991, No. 638222, judgment for defendant entered May 28, 1993).)   The other is pending appeal in this court.  (McCartin v. SDG & E (G016462, app. pending).)   While the same jurisdictional issue might be reached in the McCartin appeal, if this case is allowed to proceed, SDG & E will incur the expense of yet another trial before the issue is resolved.   Review is also warranted because the issue presented is of widespread interest.  (Brandt v. Superior Court (1985) 37 Cal.3d 813, 816, 210 Cal.Rptr. 211, 693 P.2d 796.)   Many more litigants are waiting in the wings to test out the same theories.   Writ relief, if granted, would prevent needless and expensive trials.   Therefore, we consider the merits of the petition.

II

Personal Injury Causes of Action

 The Covalts pleaded several personal injury causes of action stemming from their fears that they will contract cancer in the future as a result of exposure to EMF's.   SDG & E demurred to those causes of action on the ground they failed to state facts sufficient to constitute a cause of action.  (Code Civ.Proc., § 430.10, subd. (e).)  Although SDG & E argued the facts were insufficient because the trial court lacked jurisdiction over the subject (Code Civ.Proc., § 430.10, subd. (a)), we conclude the facts are insufficient for other reasons.

 Preliminarily, we note the Covalts make no attempts to defend their personal injury causes of action.   Throughout their briefs they emphatically state their complaint does not rest upon any claims that EMF's are in fact harmful, but only upon whether the public fear of EMF's, regardless of the reasonableness of that fear, decreases the value of their real property giving them causes of action for trespass and inverse condemnation.   At oral argument their counsel stated the Covalts were no longer claiming damages resulting from their fear of contracting cancer, although they still sought damages for medical monitoring for that disease.⁶  Despite the Covalts' concessions on these causes of action, we conclude the facts pleaded are insufficient to state personal injury causes of action.

The only personal injury alleged by the Covalts is their fear of future illness.   Recently, in Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, the Supreme Court held that in the absence of actual physical injury “emotional distress engendered by a fear of cancer or other serious physical illness or injury following exposure to a carcinogen or other toxic substance” is not compensable unless the plaintiff pleads and proves “that the fear stems from a knowledge, corroborated by reliable medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future due to the toxic exposure.”   (Id. at pp. 973–974, 25 Cal.Rptr.2d 550, 863 P.2d 795.)

Among the policy reasons cited by the court were that everyone is exposed to carcinogens every day, creating an unlimited class of potential plaintiffs unless restricted by the imposition of some limitation (id. at pp. 990–991, 25 Cal.Rptr.2d 550, 863 P.2d 795);  the “more likely than not threshold” would prevent the “unduly detrimental impact that unrestricted fear liability would have in the health care field” (id. at p. 991, 25 Cal.Rptr.2d 550, 863 P.2d 795);  “allowing recovery to all victims who have a fear of cancer may work to the detriment of those who sustain actual physical injury and those who ultimately develop cancer as a result of toxic exposure” by depleting the defendant's financial resources (id. at p. 993, 25 Cal.Rptr.2d 550, 863 P.2d 795);  and “imposition of a more likely than not limitation [establishes] a sufficiently definite and predictable threshold for recovery to permit consistent application from case to case” (ibid.).

The court summarized its holding as follows:  “Unless an express exception to this general rule is recognized, in the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that (1) as a result of the defendant's negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer;  and (2) the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.   Under this rule, a plaintiff must do more than simply establish knowledge of a toxic ingestion or exposure and a significant increased risk of cancer.   The plaintiff must further show that based upon reliable medical or scientific opinion, the plaintiff harbors a serious fear that the toxic ingestion or exposure was of such magnitude and proportion as to likely result in the feared cancer.”  (Id. at p. 997, 25 Cal.Rptr.2d 550, 863 P.2d 795; emphasis in original.)  Potter's “more likely than not” standard has also been applied to complaints involving negligent exposure to HIV or AIDS.  (See Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1074, 33 Cal.Rptr.2d 172;  Herbert v. Regents of University of California (1994) 26 Cal.App.4th 782, 786, 31 Cal.Rptr.2d 709.)

The Covalts' personal injury causes of action fail to meet the pleading requirements of Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795.   Although they pleaded that they were exposed to a substance, EMF's, which threatens cancer, they failed to plead any facts meeting the second prong of the Potter test, that “[their] fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that [they] will develop the cancer in the future due to the [EMF] exposure.”  (Id. at p. 997, 25 Cal.Rptr.2d 550, 863 P.2d 795.)   Furthermore, they concede they are no longer asserting that EMF's are in fact harmful, but only that the public fear of EMF's reduces the value of their property value.   They obviously cannot amend their complaint to sufficiently plead personal injury causes of action.

III

Property Damage Causes of Action

 SDG & E's raises jurisdictional arguments in its challenge to the Covalts' property damage causes of action.   We hold that, absent allegations that electrical distribution equipment was improperly or negligently installed or maintained, the plaintiffs cannot maintain a cause of action premised upon the mere location of electric transmission lines near their property.   Allowing such actions would directly interfere with the exclusive jurisdiction of the PUC to regulate and control public utilities.

The gravamen of the Covalts' complaint is that when SDG & E upgraded power lines near their home, their property was exposed to increased levels of EMF's.   There are no allegations that the power lines were improperly installed or maintained.   The Covalts allege that because the public has a fear that EMF's cause cancer and other diseases, the desirability of their home, and its market value, have decreased.

SDG & E contends the PUC's exclusive jurisdiction over public utilities means only the PUC can decide issues relating to EMF's from power lines and its decisions in that regard can be reviewed only by the California Supreme Court.   The Covalts counter that the PUC's jurisdiction does not extend to property damage claims resulting from the activities of public utilities.   They also contend the PUC's decisions pertaining to EMF's are not intended to preclude private damage actions against public utilities.

 The PUC has broad supervisory and regulatory powers.   (Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 6, 114 Cal.Rptr. 753, 523 P.2d 1161.)   It has “exclusive jurisdiction over the regulation and control of utilities, and once it has assumed jurisdiction, it cannot be hampered, interfered with, or second-guessed by a concurrent superior court action addressing the same issue.”  (Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 681, 187 Cal.Rptr. 219;  see also Schell v. Southern Cal. Edison Co. (1988) 204 Cal.App.3d 1039, 1047, 251 Cal.Rptr. 667.)  Section 1759 prohibits any court but the Supreme Court from acting to “review, reverse, correct, or annul” a PUC order or decision or to “enjoin, restrain, or interfere” with the PUC in the performance of its duties.⁷

 Despite the exclusive jurisdiction language of section 1759, it is equally well recognized that the PUC does not have exclusive jurisdiction over any and all matters simply having reference to public utilities.   (Masonite Corp. v. Pacific Gas & Electric Co. (1976) 65 Cal.App.3d 1, 7, 135 Cal.Rptr. 170.)   Section 2106 gives the superior court authority to award damages against a public utility when it has acted unlawfully or failed to act as required by law.⁸  The Covalts contend section 2106 authorizes their action.

In Waters v. Pacific Telephone Co., supra, 12 Cal.3d 1, 114 Cal.Rptr. 753, 523 P.2d 1161, the Supreme Court noted the conflict between section 1759 and section 2106.   It held section 2106 applied only in “those situations in which an award of damages would not hinder or frustrate the [PUC's] declared supervisory and regulatory policies.”  (Waters v. Pacific Telephone Co., supra, 12 Cal.3d at p. 4, 114 Cal.Rptr. 753, 523 P.2d 1161.   See also Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1246, 18 Cal.Rptr.2d 308;  Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1233–1234, 244 Cal.Rptr. 714;  Stepak v. American Tel. & Tel. Co. (1986) 186 Cal.App.3d 633, 640, 231 Cal.Rptr. 37;  Barnett v. Delta Lines, Inc., supra, 137 Cal.App.3d at p. 680, 187 Cal.Rptr. 219.)   Therefore, if the Covalts' complaint conflicts with, or frustrates, PUC supervisory and regulatory policies regarding power line EMF's, is outside the superior court's jurisdiction.

Over the past decade the public and the scientific community has expressed increasing concern over whether exposure to EMF's emitted by high voltage transmission lines and a variety of other sources, including most electric appliances and home wiring, pose a danger to human health.   Federal and state governments, administrative agencies, courts, and the scientific community have been studying the biological effects of EMF's on humans and animals.  (See Linder, Ambiguous Evidence and Institutional Interpretation:  An Alternative View of Electric and Magnetic Fields (1994) 19 J. Health Pol. Pol'y & L. 165.)

In 1988 the California Legislature directed the PUC and the California State Department of Health (DHS) to conduct a study on the medical risks associated with exposure to EMF's and whether legislation was needed to reduce that risk.  (Stats.1988, ch. 1551.)   The PUC and the DHS filed their joint report in 1989.  (Cal.P.U.C. & Cal. Dept. of Health, Potential Health Effects of Electric and Magnetic Fields from Electric Power Facilities (Sept. 15, 1989).)   It summarized various studies on EMF's and concluded, “the body of scientific evidence for [EMF's] posing a significant health risk is not yet compelling, but it is worrisome.”  (Id. at p. B–3.)   The report made several high-priority scientific research recommendations.   As for government regulation, the report recommended, “that California take no action at the present to regulate [EMF's] around electric power facilities.   Any such actions are premature given current scientific understanding of this public health issue.”  (Id. at p. B–4.)   The report did recommend that engineering and regulatory mitigation research be conducted in conjunction with scientific research.  (Ibid.)

On September 12, 1990, the PUC issued what has been termed the “Kramer–Victor” decision, authorizing Southern California Edison Company to build a 220 kV transmission line, which first established a PUC policy regarding EMF's.   (Re Southern California Edison Company (1990) 37 Cal.P.U.C.2d 413.)   According to the PUC's findings of fact in the Kramer–Victor decision, some studies did show a relationship between exposure to EMF's and childhood cancer, but the relationship was not statistically significant.  (Id. at p. 461.)   Although the possibility of a health hazard could not be dismissed, the potential risk was too speculative to be categorized as significant.   (Ibid.)  The decision concluded that the question of a health risk had yet to be settled, and “the prudent response is to avoid unnecessary new exposure to [EMF's].” (Id. at p. 462, emphasis added.)   Therefore, “Until the scientific findings are more definitive, we should require [the utility] to take responsible, low-cost steps to avoid unnecessarily exposing people to [EMF's.] ․ Since no one has identified any particular exposure level as safe or unsafe, any chosen remedy must strive to maintain the status quo․  [And w]herever economically feasible, a new line should not increase [EMF] levels to residents and workers along the right-of-way.” (Ibid., emphasis added.)   The PUC's order granting the certificate of public convenience and necessity ordered the utility to provide individuals in close proximity to the final transmission line with written information about the existing controversy over EMF's, to measure the existing EMF's along the proposed right-of-way, and to take reasonable steps to minimize any increase in EMF exposure.  (Id. at p. 463.)

On January 15, 1991, the PUC began an investigation to develop policies and procedures for addressing the potential health effects of EMF's.  (Cal.P.U.C. Order Instituting Investigation No. 91–01–012.)   A group was formed consisting of 17 stakeholders representing various organizations concerned with the EMF issue, including utility companies, rate payer groups, citizen and environmental groups, and electrical workers unions.   The group issued a report to the PUC making numerous recommendations on research, education, policy and procedure relative to EMF's.  (The Consensus Group Report, ante, fn. 5.)

On November 2, 1993, the PUC issued its decision on an EMF policy.   (Re Potential Health Effects of Electric and Magnetic Fields of Utility Facilities (1993) Cal.P.U.C. Dec. No. 93–11–013 [147 Pub.Util.Reps.4th 361, 1993 WL 561942].)  It found that the “[r]ecent EMF studies have not concluded that an EMF health hazard actually exists or that there is a clear cause-and-effect relationship between utility property or operations and public health.”  (Id. at p. 51 [147 Pub.Util.Reps.4th at p. 385, 1993 WL 561942].)  It concluded it was inappropriate “to adopt any specific numerical standard in association with EMFs until we have a firm scientific basis for adopting any particular value.”  (Id. at p. 54 [147 Pub.Util.Reps.4th at p. 386, 1993 WL 561942].)  Utilities seeking certification of new facilities should adopt no-and low-cost EMF mitigation measures and the EMF policy established in the earlier Kramer–Victor decision should apply to new and upgraded facilities.   (Ibid.)  It directed that further research and education programs be established in conjunction with the DHS to further study the health effects of EMF's.

The PUC has extensively considered the power line EMF issue and has formulated a policy.   Its policy is that at this time no specific maximum levels of EMF's should be set, but utilities should undertake no- and low-cost mitigation measures for new projects.   The PUC has also made factual findings regarding the public health threat posed by EMF's in both its Kramer–Victor decision and the 1993 decision on EMF's:  That there is still no scientific evidence conclusively establishing a relationship between public health and EMF's.

SDG & E argues the Covalts' action, if allowed to proceed, would hinder and frustrate the PUC's express policies and interfere with its supervisory and regulatory powers.   We agree.

First, to award damages based on the Covalts' traditional tort causes of action for trespass and nuisance, the superior court would have to come to conclusions contrary to those reached by the PUC in considering the same issue.   The court, or a jury, would have to conclude power line EMF's do pose a health hazard, that the Covalts and their property were exposed to a harmful level of EMF's, and SDG & E failed to take steps to prevent the exposure.   But the PUC has found there is insufficient scientific evidence that EMF's threaten public health, no maximum exposure level should be set and, while it recommended no- and low-cost mitigation measures be adopted for new facilities, it made no recommendations for reducing EMF's from existing facilities.   Indeed, in its earlier Kramer–Victor decision, the PUC determined the status quo should be maintained.  (Re Southern California Edison Company, supra, 37 Cal.P.U.C.2d at p. 462.)   In Pratt v. Coast Trucking, Inc. (1964) 228 Cal.App.2d 139, 39 Cal.Rptr. 332, the court noted, “no sensible person viewing the general situation should for a moment contend that there is an area within which the [PUC] and the courts can legitimately reach exactly opposite and conflicting conclusions on a given set of facts.”  (Id. at p. 149, 39 Cal.Rptr. 332;  see also Waters v. Pacific Telephone Co., supra, 12 Cal.3d at p. 11, 114 Cal.Rptr. 753, 523 P.2d 1161.)   The Covalts' action would allow for such an area.   It would encourage the courts to come to conclusions in direct conflict with the factual conclusions of, and the policies established by, the PUC.

Second, a court action for alleged EMF injuries would allow courts to shape policy regarding the appropriate method of generating and delivering electricity and allow to pass on the safety of electrical transmission systems which have been constructed in accordance with PUC regulations.   The award of damages is “a potent method of governing conduct and controlling policy.”   (San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775.)   The PUC has repeatedly asserted that is has exclusive jurisdiction over all aspects of the design, construction and operation of power lines.  (Re Review of Transmission Lines Not Exceeding 200 Kilovolts, supra, Cal.P.U.C. Dec. No. 94–06–014, p. 46 [153 Pub.Util.Reps.4th at p. 38];  Town of Woodside v. PG & E (1978) 83 Cal.P.U.C. 418, 422;  Duncan v. PG & E (1965) Cal.P.U.C. Dec. No. 69663 [61 Pub.Util.Reps.3d 388, 394].)  Furthermore, the safety and maintenance of electrical transmission systems is a matter of statewide concern.  (Polk v. City of Los Angeles (1945) 26 Cal.2d 519, 540–541, 159 P.2d 931;  see also Los Angeles Ry. Corp. v. Los Angeles (1940) 16 Cal.2d 779, 787, 108 P.2d 430 [“ ‘[r]egulation of great businesses affected with a public interest touching every institution, every activity, every home and every person in the state must be uniform, and must be free from the local judgment and prejudice.’ ”].)  Its regulation is best left to the PUC which can assure uniformity in the safe transmission of electricity throughout the state, rather than to courts acting on an ad hoc basis.

The Covalts deny that their claims interfere with any PUC regulatory policies and counter that superior court jurisdiction over their claim would further PUC policies.   In Vila v. Tahoe Southside Water Utility (1965) 233 Cal.App.2d 469, 43 Cal.Rptr. 654, the superior court was held to have jurisdiction to hear a claim for injunctive relief and compensatory damages against a water company which refused to provide water services in accordance with unambiguous PUC regulations which required service to be provided.   The court held there was concurrent jurisdiction because the “[e]xistence and exercise of [superior court] jurisdiction is in aid and not in derogation of the jurisdiction of the [PUC.]”  (Id. at p. 479, 43 Cal.Rptr. 654.)

First, the Covalts argue their complaint does not depend upon proving EMF's are in fact harmful to human health or that they were in fact harmed by EMF's.   Therefore, it does not involve contradicting any PUC policies or factual findings.   Rather, their contention is that the public's fear that EMF's are harmful, regardless of the reasonableness of that fear, results in depreciation of market value of residences located near power lines.   Thus the placement of lines, or in this case the recent upgrade adjacent to their home, results in a taking of their property for which they are entitled to compensation.  (Cal. Const., art. I, § 19.)

The Covalts rely upon San Diego Gas & Electric v. Daley (1988) 205 Cal.App.3d 1334, 253 Cal.Rptr. 144.   In that case the power company instituted a condemnation proceeding to acquire a right-of-way for a 500 kV transmission line across the defendant's unimproved 4,000 acre ranch.   In arguing for severance damages to the remainder, the defendant presented evidence that the fear of health hazards from EMF's rendered the parcel adjacent to the right-of-way the least desirable to develop and drastically reduced its value.   The trial court would not admit the power company's evidence that the public's fear of EMF's was unreasonable.   The award of substantial severance damages was affirmed.   The court noted “[s]everal jurisdictions, perhaps a majority, have recognized that buyer fear of the potential dangers associated with power lines, [EMF's] in particular, have [sic ] a depressing effect on the market value of adjacent properties ․ [and] the resultant diminution in value is compensable.”  (Id. at p. 1347, 253 Cal.Rptr. 144.)   The reasonableness of that fear was irrelevant to whether the fear existed and had an effect on property values.  (Id. at p. 1349, 253 Cal.Rptr. 144.)

We reject the Covalts' reliance on San Diego Gas & Electric v. Daley, supra, 205 Cal.App.3d 1334, 253 Cal.Rptr. 144.   Preliminarily, the case is an eminent domain case addressing only the calculation of severance damages.   It does not purport to confer upon all owners of property near utility lines an inverse condemnation claim due to reduced market value of their property.⁹  More importantly, San Diego Gas & Electric v. Daley, supra, 205 Cal.App.3d 1334, 253 Cal.Rptr. 144 was decided before the Supreme Court in Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, enunciated its “more likely than not” standard with respect to fear of cancer personal injury cases.  San Diego Gas & Electric v. Daley, supra, 205 Cal.App.3d 1334, 253 Cal.Rptr. 144 was premised upon an assertion that the public's fears of biological hazards of EMF's, regardless of the reasonableness of those fears, have a depressing effect on the fair market value of property.  Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795 effectively negates the assertion that the public fear of power line EMF's bestows an inverse condemnation claim upon neighboring property owners.

The Covalts also contend their action would further the PUC's stated policy of prudent avoidance, which they argue SDG & E failed to follow.   The Kramer–Victor decision directed utilities to take reasonable no- or low-cost steps to avoid increasing EMF exposure from new projects.   It also stated that because no particular exposure level could be designated safe or unsafe, any remedy should preserve the status quo.  (Re Southern California Edison Company, supra, 37 Cal.P.U.C.2d at p. 462.)   In the 1993 decision on EMF's, the PUC reaffirmed the Kramer–Victor policy for new and upgraded facilities.   (Re Potential Health Effects of Electric and Magnetic Fields of Utility Facilities, supra, Cal.P.U.C. Dec. No. 93–11–013 at p. 54 [147 Pub.Util.Reps.4th at p. 386, 1993 WL 561942].)  The power lines adjacent to the Covalts' home existed before the PUC adopted its policies for new projects.   Their complaint would do nothing to further the policies set out in those decisions.

Finally, the Covalts argue that a conclusion the PUC has exclusive jurisdiction over EMF claims leaves them with no effective remedy because the PUC has no authority to award damages for personal injury or property damage claims.   At best it can award reparations for overpayments in utility charges.

Although we conclude the Covalts may not recover damages, they are not left without a remedy.  (Dollar–A–Day Rent–A–Car Systems, Inc. v. Pacific Tel. & Tel. Co. (1972) 26 Cal.App.3d 454, 460, 102 Cal.Rptr. 651.)   The PUC does have a formal complaint process, which permits a member of the public to petition to have unsafe utility equipment moved or altered.

Section 705 authorizes the filing of a complaint against a utility.   Section 761 provides in pertinent part, “Whenever the [PUC], after a hearing, finds that the rules, practices, equipment, appliances, facilities, or service of any public utility, or the methods of manufacture, distribution, transmission, storage, or supply employed by it, are unjust, unreasonable, unsafe, improper, inadequate, or insufficient, the [PUC] shall determine and, by order or rule, fix the rules, practices, equipment, appliances, facilities, service, or methods to be observed, furnished, constructed, enforced, or employed.”   Section 762 provides in pertinent part, “Whenever the [PUC], after a hearing, finds that additions, extensions, repairs, or improvements to, or changes in, the existing plant, equipment, apparatus, facilities, or other physical property of any public utility or of any two or more public utilities ought reasonably to be made, or that new structures should be erected, to promote the security or convenience of its employees or the public, or in any other way to secure adequate service or facilities, the [PUC] shall make and serve an order directing that such additions, extensions, repairs, improvements, or changes be made․”

Pursuant to the PUC's complaint process, the Covalts can file a complaint contending the power lines near their house are unsafe and requesting the alteration of those lines.   Indeed, the PUC has recently held that those complaint procedures are adequate to address the public's concerns regarding power lines which are less than 50 kV.  (Re Review of Transmission Lines Not Exceeding 200 Kilovolts, supra, Cal.P.U.C. Dec. No. 94–06–014, p. 48 [153 Pub.Util.Reps.4th at p. 39].)  The Covalts must exhaust their remedy before the PUC.   The trial court lacks jurisdiction to consider claims which so directly interfere with the PUC's authority regarding the location and operation of electric transmission lines.   If the Covalts are unsatisfied with the PUC's handling of their complaint, they must seek review before the Supreme Court.  (§ 1759.)

Let a peremptory writ of mandate issue directing the trial court to vacate its order overruling the demurrer and enter a new and different order sustaining the demurrer without leave to amend.   The alternative writ is discharged.   The stay is dissolved.

FOOTNOTES

1.   All statutory references are to the Public Utilities Code unless otherwise indicated.*   *   *

2.   We treat the demurrer as admitting all properly pleaded facts and reasonable inferences which may be drawn from those facts.   (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828, 122 Cal.Rptr. 745, 537 P.2d 865.)

3.   The complaint does not allege the size of the power lines, but in their return to the alternative writ the Covalts state the power lines at issue are 12 kilovolts (kV).   Electric lines designed to operate at 200 kV and above are considered transmission lines, those operating between 50 kV and 200 kV are considered power lines and those operating below 50 kV are called distribution lines.  (Re Review of Transmission Lines Not Exceeding 200 Kilovolts (1994) Cal.P.U.C. Dec. No. 94–06–014, p. 5 [153 Pub.Util.Reps.4th 17, 1994 WL 388996].)  Distribution lines are exempt from active regulation by the PUC, in that they do not require a certificate of public convenience and necessity or a PUC permit.  (Id. at p. 17 [153 Pub.Util.Reps.4th at p. 26, 1994 WL 388996].)  Nonetheless, those lines are within the exclusive jurisdiction of the PUC and not subject to local regulation.   In constructing distribution lines, utilities must comply with PUC specifications.  (Id. at p. 18 [153 Pub.Util.Reps.4th at p. 26, 1994 WL 388996].)

4.   Again, in their return, they explain that prior to 1990 the power line consisted of a single pole with three cross-arms containing two 12 kV circuits, one which had four individual lines and one which had three individual lines.   SDG & E added a third 12 kV circuit and widened the cross-arms, thus adding individual lines and bringing them in closer proximity to the Covalts' house.

5.   We note that throughout the literature on the subject, EMF's are referred to as electric and magnetic fields, electromagnetic fields, electromagnetic radiation, power frequency fields and extremely low frequency fields.   For uniformity, we shall use the EMF nomenclature used by the PUC.EMF's exist wherever there is electric power.   The Report of the California EMF Consensus Group:  Issues and Recommendations for Interim Response and Policy Addressing Power Frequency Electric and Magnetic Fields (EMFs), filed with the PUC on March 20, 1992, (the Consensus Group Report) explains the nature of EMF's and the scientific controversy.   “Whenever we use electricity there are electric and magnetic fields created by the electric charges, Electric charges with opposite signs (a positive and negative charge) attract each other, while charges with the same sign repel each other.   These forces of attraction or repulsion—when not moving—create ‘electric fields' whose strength is related to the voltage or ‘electric pressure’ in the circuit.   When electric charges are in motion, they create ‘magnetic fields.’   The magnetic field depends on the motion of the charges.   The strength of the magnetic field is proportional to the amount of current in the circuit.   The strength of electric and magnetic fields falls off quickly as one moves away from the source.”   (Id. at p. 16.)   EMF's generally have a low frequency of 60–Hertz (Hz), one of the characteristics distinguishing them from other electromagnetic energy such as X-rays or microwaves.   Because 60 Hz fields generally do not heat tissue or ionize (break apart) molecules, they were previously believed to have no effect on biological systems.   When laboratory studies beginning in the mid–1970s suggested EMF's might produce biological responses, concerns began to develop that EMF's may pose a health hazard and there might be a link between EMF's and various forms of cancer.   (Id. at pp. 16–18.)   To date there is no conclusive scientific evidence that there is such a link or that EMF's pose a public health hazard.   (Ibid.)

6.   We hasten to point out that “medical monitoring” is not a separate tort cause of action.   Rather, it is an item of damages which may be awarded after tort liability has been established under traditional tort theories.  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1006–1007, 25 Cal.Rptr.2d 550, 863 P.2d 795.)

7.   Section 1759 specifically provides, “No court of this State, except the Supreme Court to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the [PUC] or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the [PUC] in the performance of its official duties, except that the writ of mandamus shall lie from the Supreme Court to the [PUC] in all proper cases.”

8.   Section 2106 provides in pertinent part, “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 [PUC], 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 willful, 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.”

9.   Only one California case has cited San Diego Gas & Electric v. Daley, supra, 205 Cal.App.3d 1334, 253 Cal.Rptr. 144, in passing, with respect to its holding regarding public fear of EMF's. (County Sanitation Dist. v. Watson Land Co. (1993) 17 Cal.App.4th 1268, 1280, fn. 4, 22 Cal.Rptr.2d 117.)   That case was careful to restrict San Diego Gas & Electric v. Daley, supra, 205 Cal.App.3d 1334, 253 Cal.Rptr. 144 to its facts and stated its limited holding was that in computing severance damages in a condemnation case buyer fear of EMF's could be considered.   (County Sanitation Dist. v. Watson Land Co., supra, 17 Cal.App.4th at p. 1280, fn. 4, 22 Cal.Rptr.2d 117.)

WALLIN, Associate Justice.

SILLS, P.J., and BEDSWORTH, J.*, concur.