Imperial Irrigation District v. California Independent System Operator Corporation

Filing 51

ORDER finding as moot 44 Ex Parte Motion ; granting in part and denying in part 28 Motion to Dismiss. The Court grants in part and denies in part CAISOs motion to dismiss. (Doc. No. 28.) The Court dismisses IIDs federal antitrust, breach of tar iff, and unlawful UCL claims WITH PREJUDICE. The Court dismisses the fraudulent UCL claim WITHOUT PREJUDICE. IID may file a second amended complaint curing the deficiencies noted herein with respect to the fraudulent UCL claim no later than twenty-on e days following this orders issuance. Failure to amend the complaint will result in dismissal of that claim with prejudice. The Court denies as moot IIDs request to respond to CAISOs exhibit. (Doc. No. 44.). Signed by Judge Anthony J. Battaglia on 8/1/2016. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IMPERIAL IRRIGATION DISTRICT, Case No.: 15-CV-1576-AJB-RBB Plaintiff, 12 13 14 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS v. CALIFORNIA INDEPENDENT SYSTEM OPERATOR CORPORATION, 15 16 (Doc. No. 28) Defendant. 17 18 Presently before the Court is Defendant California Independent System Operator 19 Corporation’s (“CAISO”) motion to dismiss Plaintiff Imperial Irrigation District’s (“IID”) 20 first amended complaint (“FAC”) for failure to state a claim upon which relief can be 21 granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 28.) IID opposes 22 the motion. (Doc. No. 34.) The Court heard oral argument on this matter on June 23, 2016, 23 and took the matter under submission. For the following reasons, the Court GRANTS IN 24 PART AND DENIES IN PART CAISO’s motion. IID’s federal antitrust, breach of tariff, 25 and unlawful UCL claims are DISMISSED WITH PREJUDICE. IID’s fraudulent UCL 26 claim is DISMISSED WITHOUT PREJUDICE. Because the Court does not rely on 27 CAISO’s exhibit, introduced at the hearing on this matter, (see Doc. No. 42), to preclude 28 IID from moving forward with its state law claims, the Court DENIES AS MOOT IID’s 1 15-CV-1576-AJB-RBB 1 request to respond to that exhibit. (Doc. No. 44.) See infra note 9. 2 BACKGROUND 3 This dispute centers on nondiscriminatory access to California’s electric 4 transmission grid.1 The parties in this litigation are two of the eight entities (“balancing 5 authority” or “BA”) that provide electric transmission service and transmission operations 6 services within the State of California. (Doc. No. 26 ¶¶ 2, 23.) IID is the third largest public 7 power utility in California and is headquartered in Imperial County, California. (Id. ¶¶ 3, 8 51.) CAISO is a non-governmental entity created by the State of California and is 9 headquartered in Folsom, California. (Id. ¶¶ 62–63.) 10 IID alleges it competes with CAISO in two markets in California: the transmission 11 service market and the transmission operations services market. (Id. ¶ 164.) The 12 transmission service market is the market for interconnecting and transmitting electricity 13 across high voltage, long-distance power lines within California, for delivery to electricity 14 customers located both in California and outside California through interconnected 15 electricity transmission systems. (Id. ¶ 165.) The transmission operations services market 16 is a market where the BAs perform operations services within their respective BAAs, 17 including (1) managing the operation and supervising the maintenance of a high-voltage 18 electric transmission network; (2) granting transmission service to wholesale electricity 19 customers; (3) coordinating the generation and transmission outages; and (4) managing the 20 process of transmission to a high-voltage electric transmission network. (Id. ¶ 166.) CAISO 21 controls at least 80 percent of each market. (Id. ¶¶ 66–67, 169–71.) CAISO’s participating 22 transmission owners (“PTOs”) own the vast majority of electric transmission assets in 23 California. (Id. ¶ 24.) IID controls approximately one percent of each market. (Id. ¶ 54.) 24 25 26 27 28 On November 24, 2015, the Court ruled on CAISO’s motion to dismiss the original complaint, which was largely granted. (See Doc. No. 23.) In that order, the Court exhaustively summarized the case’s factual background. The Court assumes familiarity with that order and accordingly will recite here only those facts necessary to understand the case’s current posture with respect to the instant order. 1 2 15-CV-1576-AJB-RBB 1 Each BA controls a separate geographic region within California known as 2 balancing authority areas (“BAAs”). (See id. ¶¶ 2, 58.) Only one BA operates in any given 3 BAA. (See id. ¶ 68.) CAISO’s BAA surrounds IID’s BAA on most sides. (See Doc. No. 4 26-1.) While the BAAs do not overlap geographically, IID alleges the parties compete for 5 the business of generators of renewable energy whose facilities are located within or near 6 IID’s BAA. (Doc. No. 26 ¶¶ 58, 176; see Doc. No. 26-4.) Specifically, the parties compete 7 for connections with these generators to obtain the fees associated with the flow of that 8 electricity across their respective transmission grids. (Doc. No. 26 ¶¶ 58, 176.) 9 The parties’ grids are physically connected at two interties. (Id. ¶ 59.) CAISO 10 controls access to the transmission grid within its BAA, having the power to grant or deny 11 access to services on its grid and to determine the terms under which such access is granted. 12 (Id. ¶¶ 4–5.) Access to CAISO’s grid is necessary for entities within CAISO’s BAA that 13 wish to purchase electric generation sources located inside or outside CAISO’s BAA, as 14 well as for electricity sellers within CAISO’s BAA that wish to deliver electricity to entities 15 outside CAISO’s BAA. (Id. ¶¶ 5, 174.) Entities located within IID’s BAA cannot export 16 electricity onto CAISO’s grid without CAISO’s permission. (Id. ¶ 9.E.) 17 CAISO also has the authority, under its FERC-approved tariff and its business 18 practice manual (“BPM”), to calculate an entity’s “maximum import capability” (“MIC”), 19 that is, the quantity in megawatts (“MW”) determined by CAISO for each Intertie into its 20 BAA to be deliverable to the BAA based on CAISO study criteria. (Id. ¶¶ 85, 89, 91–92.) 21 CAISO has historically set IID’s access to the grid to a MIC of 462 MW. (See id. ¶¶ 6, 9.E, 22 143.) In other words, IID can export from its BAA onto or through the CAISO grid only 23 462 MW of electric power.2 (See id. ¶ 59.) 24 25 26 27 28 2 IID alleges that MIC has nothing to do with the allocation of interstate transmission capacity, but rather, merely acts as an “accounting mechanism.” (Doc. No. 26 ¶¶ 84, 86– 87.) However, as explained in detail below, the Court finds these newly added allegations irreconcilable with other allegations contained in the FAC and the original complaint, as well as with IID’s overarching theory of injury. See infra pp. 10–11 and note 6. 3 15-CV-1576-AJB-RBB 1 The essence of the FAC is that CAISO induced IID, through a series of memoranda 2 and public statements from 2011 through 2014, to invest over $30 million in upgrades to 3 Path 42, one of the two transmission lines that connect IID’s BAA to CAISO’s. (See id. ¶¶ 4 39, 103, 107–15, 126–34, 141.) Essentially, CAISO forecasted that if IID made certain 5 upgrades to its side of the line, IID’s MIC would increase to 1400 MW in 2019 (“expanded 6 MIC”). (Id. ¶ 39, 103.) In reliance on CAISO’s statements, IID’s board of directors 7 approved Path 42 upgrades within its BAA in August 2011, which were completed and 8 placed into service in January 2015. (Id. ¶¶ 121–22, 135–37.) 9 Notwithstanding its knowledge of IID’s investment, in July 2014, CAISO reduced 10 IID’s expanded MIC to its historic level, citing the closure of the San Onofre Nuclear 11 Generating Station (“SONGS”) as the basis for the change. (Id. ¶¶ 125, 138, 143, 150.) In 12 that statement, CAISO acknowledged that certain transmission additions—not including 13 IID’s upgrades to Path 42—restored future additional amount of deliverability from the 14 Imperial zone up to 1000 MW; however, CAISO reserved that 1000 MW for itself, leaving 15 IID with its historic 462 MIC, notwithstanding the fact that IID’s BAA comprised 98 16 percent of the Imperial zone. (Id. ¶¶ 145–47, 188.) 17 Unconvinced that SONGS’ closure was the true cause for the reduction to its 18 expanded MIC, IID took it upon itself to investigate. (Id. ¶ 153.) Through this investigation, 19 IID discovered CAISO allegedly violated its own BPM and operating procedures, which 20 were promulgated and adopted pursuant to its tariff approved by the Federal Energy 21 Regulatory Commission (“FERC”). (See id. ¶ 9.A, 154–55.) Due to this violation, CAISO 22 miscalculated the flow from one of its transmission lines. (Id. ¶¶ 155, 173(a).) Had CAISO 23 accurately computed that line’s flow, IID’s expanded MIC would have been correctly set 24 at 1400 MW without the need for additional upgrades. (Id. ¶ 156.) 25 The elimination of IID’s expanded MIC, and CAISO’s public misrepresentation of 26 IID’s MIC, has resulted in renewable energy developers located near or within IID’s BAA 27 to bypass the IID system and connect directly with the CAISO system, thus depriving IID 28 of significant revenue from the provision of interconnection services, transmission 4 15-CV-1576-AJB-RBB 1 services, and transmission operations services. (Id. ¶¶ 9.A, 159, 173(a), 183.) It has also 2 left developers of renewable energy with little ability to plan, finance, and build new 3 renewable energy facilities that connect to IID’s transmission system. (Id. ¶ 160.) IID 4 alleges that due to the developers connecting directly to CAISO’s grid, there is a spillover 5 of energy (of which CAISO knew and planned) onto IID’s transmission system, which 6 precludes IID from selling or otherwise using that capacity. (Id. ¶ 9.C.) In addition to the 7 reduction in its expanded MIC, IID alleges CAISO has extensively used IID’s transmission 8 lines and infrastructure to import substantial out-of-state power without compensating IID 9 for this use. (Id. ¶¶ 9.C, 173(g), 193.) IID alleges CAISO’s actions were motivated by, inter 10 alia, its intent to further its monopolistic position in the relevant markets by forcing IID to 11 join CAISO as a PTO. (Id. ¶ 162.) 12 On July 16, 2015, IID filed the instant action, alleging claims for monopolization 13 and attempted monopolization in violation of § 2 of the Sherman Act, and state law claims 14 of breach of implied contract, conversion, quantum meruit, and restitution. (Doc. No. 1.) 15 The Court largely granted CAISO’s motion to dismiss the original complaint on November 16 24, 2015. (Doc. No. 23.) IID filed the FAC on January 6, 2016. (Doc. No. 26.) On February 17 5, 2016, CAISO filed the instant motion to dismiss. (Doc. No. 28.) IID opposed the motion, 18 (Doc. No. 34), and CAISO replied, (Doc. No. 35). The Court held a hearing on this matter 19 on June 23, 2016. The Court took the matter under submission, and this order follows. 20 LEGAL STANDARD 21 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. 22 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and 23 plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. 24 P. 8(a)(2). Plaintiffs must also plead, however, “enough facts to state a claim to relief that 25 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The 26 plausibility standard thus demands more than a formulaic recitation of the elements of a 27 cause of action or naked assertions devoid of further factual enhancement. Ashcroft v. 28 Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain sufficient allegations 5 15-CV-1576-AJB-RBB 1 of underlying facts to give fair notice and to enable the opposing party to defend itself 2 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 3 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 4 of all factual allegations and must construe them in the light most favorable to the 5 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The 6 court need not take legal conclusions as true “merely because they are cast in the form of 7 factual allegations.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting 8 W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)) (internal quotation marks 9 omitted). Similarly, “conclusory allegations of law and unwarranted inferences are not 10 sufficient to defeat a motion to dismiss.” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 11 699 (9th Cir. 1998). 12 In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not 13 look beyond the complaint for additional facts. See United States v. Ritchie, 342 F.3d 903, 14 907–08 (9th Cir. 2003). Where dismissal is appropriate, a court should grant leave to amend 15 unless the plaintiff could not possibly cure the defects in the pleading. Knappenberger v. 16 City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). 17 DISCUSSION 18 CAISO presents four arguments that it asserts require the FAC’s dismissal with 19 prejudice: (1) the filed rate doctrine applies; (2) FERC should have primary jurisdiction 20 over the entire dispute; (3) IID’s state law claims are preempted; and (4) IID fails to state 21 its claims. (See Doc. Nos. 28-1, 35.) IID counters that CAISO’s arguments concerning 22 FERC’s jurisdiction do nothing more than seek reconsideration of the Court’s prior order. 23 (Doc. No. 34 at 7–8.) The Court addresses each of CAISO’s arguments in turn. 24 I. Breach of Tariff Claim 25 As an initial matter, CAISO points out in its reply that IID failed to oppose CAISO’s 26 motion to dismiss with respect to IID’s breach of tariff claim. (Doc. No. 35 at 2.) The Court 27 agrees with CAISO that IID has apparently abandoned this claim. See Sanchez v. Maricopa 28 Cnty., No. CV 07-1244-PHX-JAT, 2008 WL 4057002, at *7 (D. Ariz. Aug. 27, 2008) (“If 6 15-CV-1576-AJB-RBB 1 a non-moving party only partially responds to a motion . . . , then the party abandons the 2 claims that it does not address in its opposition to the motion.”). At any rate, even had IID 3 defended this claim, it is apparent from the face of the Federal Power Act that it does not 4 permit a private right of action. 16 U.S.C. § 824v(b) (“Nothing in this section [dealing with 5 the prohibition on energy market manipulation] shall be construed to create a private right 6 of action.”); Woolsey v. J.P. Morgan Ventures Energy Corp., No. 15cv530-WQH-BGS, 7 2015 WL 6455571, at *9 (S.D. Cal. Oct. 26, 2015) (“The FPA does not provide a right of 8 action.”). The Court thus GRANTS CAISO’s motion and DISMISSES the breach of tariff 9 claim WITH PREJUDICE. 10 II. Filed Rate Doctrine 11 CAISO first argues that FERC has exclusive jurisdiction over IID’s claims pursuant 12 to either the filed rate doctrine or primary jurisdiction. (Doc. No. 28-1 at 13–20.) IID 13 counters that CAISO improperly seeks reconsideration of the Court’s prior rulings, merely 14 rehashing the arguments it first presented to the Court in its motion to dismiss IID’s original 15 complaint, which the Court rejected in part. (Doc. No. 34 at 7.) 16 “Under the law of the case doctrine, ‘a court is generally precluded from 17 reconsidering an issue that has already been decided by the same court, or a higher court 18 in the identical case.’” Gallagher v. San Diego Unified Port Dist., 14 F. Supp. 3d 1380, 19 1389 (S.D. Cal. 2014) (quoting United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 20 1998))). However, the doctrine “should not be applied woodenly in a way inconsistent with 21 substantial justice.” United States v. Miller, 822 F.2d 828, 832–33 (9th Cir. 1987). 22 Accordingly, the Court has the discretion to depart from the law of the case if “(1) [t]he 23 first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) 24 the evidence on remand is substantially different; (4) other changed circumstances exist; 25 or (5) a manifest injustice would result.” Gallagher, 14 F. Supp. 3d at 1389 (citing Cuddy, 26 147 F.3d at 1114). “Failure to apply the doctrine of the law of the case absent one of the 27 requisite conditions constitutes an abuse of discretion.” United States v. Alexander, 106 28 F.3d 874, 876 (9th Cir. 1997). 7 15-CV-1576-AJB-RBB 1 In the previous ruling finding the filed rate doctrine did not bar IID’s claims to the 2 extent it sought to enforce the tariff, the Court principally relied upon the Ninth Circuit’s 3 decision in Brown v. MCI WorldCom Network Services, Inc. (See Doc. No. 23 at 14–15.) 4 In Brown, in the context of a claim arising under the Federal Communications Act 5 (“FCA”), the Ninth Circuit held that while “[t]he filed-rate doctrine precludes courts from 6 deciding whether a tariff is reasonable, . . . it does not preclude courts from interpreting the 7 provisions of a tariff and enforcing that tariff.” Brown, 277 F.3d 1166, 1171–72 (9th Cir. 8 2002). However, the Ninth Circuit went on to note that a contrary conclusion “would render 9 meaningless the provisions of the FCA allowing plaintiffs redress in federal court.” Id. at 10 1172 (citing 47 U.S.C. §§ 206–07). 11 Considering the parties’ arguments anew in light of controlling case law decided 12 after the decision in Brown, the Court concludes its reliance on Brown to hold open the 13 door to claims seeking to enforce the CAISO tariff was in error. Unlike the FCA, the FPA 14 does not provide plaintiffs redress in court. 16 U.S.C. § 824v(b); see also Mont.-Dakota 15 Utils. Co. v. N.W. Pub. Serv. Co., 341 U.S. 246, 251 (1951) (“the prescription of the [FPA] 16 is a standard for [FERC] to apply and, independently of [FERC] action, creates no right 17 which courts may enforce”); California ex rel. Lockyer v. Mirant Corp., 266 F. Supp. 2d 18 1046, 1063 (N.D. Cal. 2003) (holding Brown to be inapposite for this reason). 19 Furthermore, subsequent Ninth Circuit case law specifically addressing interstate 20 transmission of electricity under the FPA makes clear that FERC enjoys plenary 21 jurisdiction over enforcement of, and providing redress for, violations of FERC-approved 22 tariffs. See Pub. Util. Dist. No. 1 v. Dynergy Power Mktg., Inc., 384 F.3d 756, 762 (9th Cir. 23 2004) (“if the defendants sold electricity in violation of the filed tariffs, [plaintiff’s] only 24 option is to seek a remedy from FERC”); California ex rel. Lockyer v. Dynergy, Inc., 375 25 F.3d 831, 851 (9th Cir. 2004) [hereinafter Lockyer] (“our cases specifying the nature and 26 scope of exclusive FERC jurisdiction make clear that the interstate ‘transmission’ or ‘sale’ 27 of wholesale energy pursuant to a federal tariff—not merely the ‘rates’—falls within 28 FERC’s exclusive jurisdiction”); Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 8 15-CV-1576-AJB-RBB 1 295 F.3d 918, 931 (9th Cir. 2002) [hereinafter TANC] (“We [] hold that FERC’s exclusive 2 jurisdiction over the interstate transmission of electricity extends to any claims of 3 entitlement to a specific allocation of interstate transmission capacity[.]”). Like the plaintiff 4 in Lockyer, “[t]o the extent [IID] is seeking to enforce the [] provisions of the [CAISO] 5 tariff, . . . this conflicts with the filed rate doctrine and the exclusive authority conferred to 6 FERC to enforce its tariff.” 375 F.3d at 853. For all these reasons, the Court finds it clearly 7 erred in permitting IID’s claims predicated on enforcement of the CAISO tariff to go 8 forward. 9 IID argues that even if the filed rate doctrine applies, the competitor exception does 10 not preclude the Court’s consideration of its claims. In Cost Management Services, Inc. v. 11 Washington Natural Gas Co., the Ninth Circuit recognized the competitor exception to the 12 filed rate doctrine, stating “the rationales offered for the [] doctrine do not justify extending 13 [it] to preclude rate-based damages actions brought by competitors of regulated entities[.]” 14 99 F.3d 937, 948 (9th Cir. 1996). 15 The Court finds that IID has sufficiently alleged facts that CAISO and IID compete 16 for connections with renewable energy generators located within IID’s BAA. 17 Notwithstanding these allegations, the Court deems it inappropriate to extend the 18 competitor exception to the instant case. Cost Management Services, Inc. involved 19 challenges to tariffs filed with a state regulatory commission. 99 F.3d at 940. This is a 20 significant distinction from the present case where the tariff at issue was filed with, and 21 approved by, FERC, a federal regulatory commission with exclusive jurisdiction over the 22 enforcement of tariffs filed with it. See id. at 947 (rejecting Sixth Circuit’s decision in 23 Pinney Docks in part because the Sixth Circuit’s assumption that the Interstate Commerce 24 Commission necessarily takes “the pro-competition policies of the antitrust laws” into 25 account when calculating rates should not be extended “to cases involving the plethora of 26 state agencies which approve commercial tariffs of a variety of regulated enterprises”). 27 Extension of the competitor exception to such disputes would run afoul of TANC and its 28 progeny that place disputes directly affecting transmission rates within FERC’s exclusive 9 15-CV-1576-AJB-RBB 1 jurisdiction.3 The Court is disinclined to do so.4 2 IID’s final argument against the filed rate doctrine’s application—that MIC has 3 nothing to do with transmission capacity—is similarly unavailing. (Doc. No. 34 at 23–26.) 4 In the FAC, IID alleges that MIC is merely an “accounting mechanism” that has no bearing 5 on transmission capacity. (Doc. No. 26 ¶ 84.) While IID points to certain CAISO-generated 6 documents that tend to support this position,5 this allegation simply cannot be reconciled 7 with IID’s theory of CAISO’s alleged misconduct. If CAISO’s reduction to IID’s expanded 8 MIC had no effect on IID’s ability to export electricity onto CAISO’s grid, then there is 9 nothing to stop IID from doing so where it is physically capable of doing so. In other words, 10 if MIC did not act as a cap or restraint on IID’s ability to export electricity, IID would have 11 nothing about which to complain. IID’s assertion that “MIC has nothing to do with the 12 allocation of transmission capacity” is simply implausible, and the Court accordingly 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The Court notes that neither party in TANC can be construed as a customer of the other, yet the Ninth Circuit readily found the filed rate doctrine applicable to bar the plaintiff’s suit. See TANC, 295 F.3d at 923 (describing the relationship as a contractual agreement whereby the parties jointly constructed and interconnected with the electricity intertie in dispute). 4 IID points to no case law that has applied the competitor exception to a claim challenging or seeking enforcement of a tariff filed with a federal regulatory commission, nor has the Court found any. IID’s reliance on Wah Chang v. Duke Energy Trading & Marketing, L.L.C., 507 F.3d 1222, 1226 (9th Cir. 2007), and County of Stanislaus v. Pacific Gas & Electric Co., 114 F.3d 858, 886 (9th Cir. 1997), does not aid its position given that the Ninth Circuit gave short shrift to the exception in finding it did not apply in those cases. 5 IID cites a letter from CAISO to FERC, in which CAISO states certain proposed amendments to its tariff concerning MIC assignment “do not affect physical transmission capability of the ISO Controlled Grid, transmission rights, or the manner in which transmission service is obtained under the ISO Tariff.” Letter from CAISO, to the Honorable Philis J. Posey, Acting Secretary, Federal Energy Regulatory Commission 1 (Mar. 22, 2007), available at http://elibrary.ferc.gov/idmws/file_list.asp?document_id= 13489719. The Court finds this letter to be the proper subject of judicial notice because its source, FERC’s website, “cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court therefore takes judicial notice of the letter. 10 15-CV-1576-AJB-RBB 1 rejects it.6 (Doc. No. 26 ¶ 86.) See Smith v. Wilt, No. 12-cv-05451-WHO, 2013 WL 2 5675897, at *4 n.5 (N.D. Cal. Oct. 17, 2013) (“[t]he alteration of [] allegations . . . , and 3 omission of the contradictory allegations, make plaintiffs’ current allegations . . . simply 4 not plausible” (emphasis in original)). 5 In sum, the Court finds it clearly erred in permitting IID to bring claims seeking 6 enforcement of the CAISO tariff. The Court rejects IID’s assertions that a competitor 7 exception applies under the circumstances of this case and that MIC has no impact on 8 transmission capacity. The Court therefore GRANTS IN PART CAISO’s motion to 9 dismiss and DISMISSES WITH PREJUDICE IID’s federal antitrust claims. 10 III. Primary Jurisdiction 11 CAISO next argues that the doctrine of primary jurisdiction requires dismissal of 12 IID’s claims because the FAC “demonstrate[s] the complexity of the studies and 13 calculations that CAISO administers under FERC’s oversight and the wider impact of IID’s 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court is cognizant of its duty to accept as true the FAC’s factual allegations. However, this duty does not extend to allegations that are implausible in light of earlier iterations of the plaintiff’s complaint. See, e.g., Fasugbe v. Willms, No. CIV. 2:10-2320 WBS KJN, 2011 WL 2119128, at *5 (E.D. Cal. May 26, 2011) (stating that while “plaintiffs may alter their allegations in an amended complaint, [] the court may properly consider the plausibility of the FAC in light of the prior allegations”). In its original complaint, IID stated that MIC is “the maximum amount of power that can be safely and reliably imported from one BAA to another BAA.” (Doc. No. 1 ¶ 94.) IID further alleged that “CAISO will not allow IID to pass additional energy over either bridge,” and without this permission from CAISO, “IID cannot provide existing and potential customers electric transmission service that originates within [] IID’s BAA and terminates within or travels across CAISO’s BAA . . . .” (Id. ¶¶ 4, 90.) Furthermore, the allegation that MIC has nothing to do with transmission capacity is belied by other allegations in the FAC and IID’s theory of its case altogether. For example, IID alleges that “the amount of Expanded MIC acts as a restriction in the flow of electricity from IID to CAISO’s territory.” (Doc. No. 26 ¶ 59.) IID further alleges that “renewable energy generators within IID’s BAA [] cannot transmit energy across the[] two connection points or interties [connecting IID’s BAA to CAISO’s] to [customers] within CAISO’s BAA unless CAISO assigns the requisite amount of [] Expanded [MIC] to each intertie.” (Id. ¶ 178.) In light of these allegations, it is simply implausible that MIC has no effect on transmission allocation. 6 11 15-CV-1576-AJB-RBB 1 position on the flow of electricity in much of California and beyond.” (Doc. No. 28-1 at 2 18–20.) 3 The primary jurisdiction doctrine is a vehicle by which courts may “stay proceedings 4 or [] dismiss a complaint without prejudice pending the resolution of an issue within the 5 special competence of an administrative agency.” Clark v. Time Warner Cable, 523 F.3d 6 1110, 1114 (9th Cir. 2008). Although there is “[n]o fixed formula [] for applying” the 7 doctrine, United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956), courts in the Ninth 8 Circuit have generally held the doctrine applicable where there is “(1) the need to resolve 9 an issue that (2) has been placed by Congress within the jurisdiction of an administrative 10 body having regulatory authority (3) pursuant to a statute that subjects an industry or 11 activity to a comprehensive regulatory authority that (4) requires expertise or uniformity 12 in administration,” Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 781 13 (9th Cir. 2002) (citing United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1362 (9th 14 Cir. 1987)). However, the doctrine should be used only if a claim “requires resolution of 15 an issue of first impression, or of a particularly complicated issue that Congress has 16 committed to a regulatory agency,” Brown, 277 F.3d at 1172 (citing Tex. & Pac. Ry. Co. 17 v. Abilene Cotton Oil Co., 204 U.S. 426, 442 (1907)), or if “protection of the integrity of a 18 regulatory scheme dictates preliminary resort to the agency which administers the scheme,” 19 United States v. Phila. Nat’l Bank, 374 U.S. 321, 353 (1963) (citations omitted). 20 In its prior order, the Court concluded that the doctrine of primary jurisdiction does 21 not preclude IID’s state law claims. CAISO has presented no compelling reasons for the 22 Court to revisit that decision, and it declines to do so. See Alexander, 106 F.3d at 876 23 (“Failure to apply the doctrine of the law of the case absent one of the requisite conditions 24 constitutes an abuse of discretion.”).7 The Court therefore DENIES IN PART CAISO’s 25 26 27 28 7 CAISO asserts the Court should apply the doctrine of primary jurisdiction because the Court will ultimately be faced with complex issues when determining whether CAISO complied with its tariff. (Doc. No. 28-1 at 18–20.) However, the Ninth Circuit has made clear that the doctrine is used to route only “threshold decision[s] as to certain issues to the 12 15-CV-1576-AJB-RBB 1 motion to the extent it seeks dismissal based upon the doctrine of primary jurisdiction. 2 IV. Preemption 3 CAISO finally argues that “there can be no serious dispute that FERC’s exclusive 4 authority to regulate interstate transmission and wholesale of electric power preempts state 5 law claims like those IID asserts.” (Doc. No. 28-1 at 20–21.) IID counters, contending that 6 its state law claims are neither field nor conflict preempted. (Doc. No. 34 at 28–30.) 7 “Federal preemption of state law is rooted in the Supremacy Clause, Article VI, 8 clause 2, of the United States Constitution.” TANC, 295 F.3d at 928. Preemption of state 9 law “is compelled whether Congress’ command is explicitly stated in the statute’s language 10 or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 11 519, 525 (1977) (citations omitted). 12 “In the absence of express preemption, federal law may pre-empt state claims in two 13 ways . . . .” Lockyer, 375 F.3d at 849. “Field preemption” occurs where “Congress 14 evidences an intent to occupy a given field . . . .” Silkwood v. Kerr-McGee Corp., 464 U.S. 15 238, 248 (1984) (citations omitted). Where field preemption is not applicable, “conflict 16 preemption” may nonetheless preempt state law claims “to the extent [state law] actually 17 conflicts with federal law, that is, when it is impossible to comply with both state and 18 federal law, or where the state law stands as an obstacle to the accomplishment of the full 19 purposes and objectives of Congress.” Id. (citations omitted). 20 IID first argues the doctrine of field preemption does not apply because its state law 21 claims “seek compensation for CAISO’s use of IID’s grid, a subject not addressed in the 22 tariff.” (Id. at 28–29.) In its prior order, the Court noted that IID’s conversion claim, 23 24 25 26 27 28 agency charged with primary responsibility for governmental supervision or control of the particular industry or activity involved.” Gen. Dynamics Corp., 828 F.2d at 1362. In the context of a motion to dismiss brought under Rule 12(b)(6), the Court “must accept as true [IID’s] allegation that [CAISO] violated [its t]ariff. For that reason, the ‘threshold decision’ which [CAISO] would have [the Court] refer to [FERC] must necessarily be resolved in favor of [IID].” Cost Mgmt. Servs., Inc., 99 F.3d at 949. 13 15-CV-1576-AJB-RBB 1 through which IID sought redress for CAISO’s alleged unauthorized use of its facilities, 2 was preempted by the FPA. (Doc. No. 23 at 16–17.) Relying on the Supreme Court’s 3 decision in New England Power Co. v. New Hampshire, 455 U.S. 331, 340 (1982), the 4 Court held that “controlling case law makes clear that the transmission of electric energy 5 in interstate commerce is a matter of federal concern.” (Doc. No. 23 at 17.) The Court 6 found that “whatever remedy to which IID may be entitled for [CAISO’s] alleged 7 conversion is within the exclusive jurisdiction of FERC.” (Id.) 8 Having looked more deeply at this issue, and with the benefit of the parties’ briefing, 9 the Court concludes its holding that IID’s state law claims were field preempted was clearly 10 erroneous. While it is true that transmission of electric energy in interstate commerce is 11 generally a matter of federal concern, see 16 U.S.C. § 824(a), FERC simply has no 12 jurisdiction over the transmission facilities at issue here, namely, IID’s facilities, because 13 FERC’s jurisdiction extends only to “public utilities,” id. § 824(b)(2). “Public utility” is 14 defined as “any person who owns or operates facilities subject to” FERC’s jurisdiction. Id. 15 § 824(e). “The FPA’s definition of ‘person’ does not include municipalities or state 16 agencies.” Bonneville Power Admin. v. F.E.R.C., 422 F.3d 908, 917 (9th Cir. 2005); see 17 also id. at 915 (“Congress was careful to specify which utilities fall within the definition 18 of ‘public utility.’ Even though governmental and municipal utilities are public in normal 19 parlance, they are not ‘public utilities’ under the FPA.”).8 20 IID is indisputably a municipality. See 16 U.S.C § 796(7) (defining “municipality” 21 as “a city, county, irrigation district, drainage district, or other political subdivision or 22 agency of a State competent under the laws thereof to carry on the business of developing, 23 transmitting, utilizing, or distributing power” (emphasis added)). Thus, IID’s state law 24 claims are beyond the purview of FERC’s jurisdiction. In Resale Power Group of Iowa 25 26 27 28 CAISO conceded as much at the hearing and in its nonopposition to IID’s request to respond to CAISO’s exhibit. (See Doc. No. 46 at 2 (“IID continues to focus on the fact that it is not regulated by FERC. . . . That fact is not contested . . . .” (emphasis added)).) 8 14 15-CV-1576-AJB-RBB 1 WPPI Energy, 130 FERC ¶ 61217 (2010), FERC noted it had previously found it did not 2 have jurisdiction over CIPCO’s complaint seeking the “collect[ion of] a charge [from 3 Midwest ISO] for the alleged unauthorized use of CIPCO’s transmission facilities” based 4 on its lack of jurisdiction because CIPCO was “not a public utility and is not a transmission- 5 owning member of Midwest ISO.” Id. ¶ 61990; see id. ¶ 61986. As such, CIPCO was 6 permitted to bring claims in state court for breach of an implied-in-fact contract, unjust 7 enrichment, trespass, and conversion. Id. ¶ 61986. Like CIPCO, IID seeks to collect fees 8 for CAISO’s alleged unauthorized use of IID’s transmission facilities. (Doc. No. 26 ¶¶ 9.C, 9 173(g), 193.) These claims fall outside the ambit of FPA and FERC’s jurisdiction and are 10 thus not field preempted. 11 The Court finds the same conclusion follows with respect to conflict preemption. 12 IID, through its state law claims, seeks compensation for CAISO’s alleged unauthorized 13 use of IID’s transmission facilities. CAISO’s FERC-approved tariff does not purport to 14 govern the compensation for such use.9 Further, as a municipality, FERC has no 15 jurisdiction over IID’s transmission facilities. As such, entertaining IID’s state law claims 16 presents no conflict with federal law. Thus, the doctrine of conflict preemption also does 17 not apply. See Silkwood, 464 U.S. at 248 (stating conflict preemption applies only where 18 state law “actually conflicts with federal law” (emphasis added)). 19 V. 20 State Law Claims Finally, CAISO argues that IID has failed to state any of its state law claims. (Doc. 21 22 23 24 25 26 27 28 9 At the hearing on this matter, CAISO argued that its tariff purportedly governs “unscheduled overflow” onto IID’s grid. (Doc. No. 42.) Be that as it may, but CAISO ignores the fact that the vast majority of IID’s allegations related to CAISO’s use of IID’s grid relates to its knowing, unauthorized use. (Doc. No. 26 ¶¶ 9.C, 173(g), 193.) Accepting these allegations as true, CAISO’s use of IID’s grid goes beyond the mere occasional and accidental overflow. Accordingly, the Court finds, for purposes of the instant motion, that the FAC’s allegations take IID’s state law claims outside the reach of CAISO’s tariff. Because the exhibit CAISO provided the Court and IID at the hearing does little to change the IID-favored outcome on this issue, the Court DENIES AS MOOT IID’s ex parte motion for an opportunity to respond to the exhibit. (Doc. No. 44.) 15 15-CV-1576-AJB-RBB 1 No. 28-1 at 29–33.) IID argues the contrary. (Doc. No. 34 at 30–31.) 2 A. 3 CAISO seeks dismissal of the breach of implied contract claim because (1) the 4 alleged agreement could not have been performed within one year; and, alternatively, (2) 5 no formation occurred. (Doc. No. 28-1 at 29–31.) IID counters that its performance takes 6 the contract outside the purview of the statute of frauds. (Doc. No. 34 at 30.) IID further 7 contends that “the law infers a promise to pay even when there was no express promise to 8 pay,” and thus CAISO’s argument that it did not intend to contract fails. (Id.) Breach of Implied Contract 9 “[T]he vital elements of a cause of action based on contract are mutual assent 10 (usually . . . an offer and acceptance) and consideration.” Div. of Labor Law Enforcement 11 v. Transpacific Transp. Co., 69 Cal. App. 3d 268, 275 (1977). “An implied-in-fact contract 12 shares the same elements as an express contract, except that offer and acceptance are 13 implied from the parties’ conduct.” Garibaldi v. Bank of Am. Corp., No. C 13-2223 SI, 14 2014 WL 1338563, at *3 (N.D. Cal. Apr. 1, 2014). To state a claim for breach of contract 15 under California law, a plaintiff must allege “(1) the existence of a contract, (2) plaintiff’s 16 performance or excuse for nonperformance, (3) defendant’s breach, and (4) damages to 17 plaintiff as a result of the breach.” Buschman v. Anethesia Bus. Consultants LLC, 42 F. 18 Supp. 3d 1244, 1250 (N.D. Cal. 2014). 19 1. CAISO’s Assent 20 CAISO first argues that an implied contract was not formed because it did not assent 21 to the terms of the alleged contract. (Doc. No. 28-1 at 30–31.) CAISO asserts that IID’s 22 unilateral actions of approving and completing the Path 42 upgrades are insufficient to 23 create a contract. (Id. at 30.) CAISO is correct that “the assumption, intention or 24 expectation of either party alone, not made known to the other, can give rise to no inference 25 of an implied contract . . . .” Travelers Fire Ins. Co. v. Brock & Co., 47 Cal. App. 2d 387, 26 392 (1941). However, those are not the facts alleged in the FAC. IID alleges CAISO 27 proposed the Path 42 upgrades. (Doc. No. 26 ¶¶ 103–04, 107–10.) In reliance on CAISO’s 28 actions, IID’s board of directors approved the upgrades to Path 42. (Id. ¶ 121.) In 2011, 16 15-CV-1576-AJB-RBB 1 IID publicly announced that the upgrades would “help [IID] deliver renewable energy 2 generation to markets within the CAISO grid.” (Id. ¶¶ 124–25.) Following IID’s approval, 3 CAISO continued to acknowledge the Path 42 upgrades and corresponding expanded MIC. 4 (Id. ¶¶ 126–27, 129, 132–34.) Based upon CAISO’s continued acknowledgement of the 5 project, IID expended over $30 million in upgrades to Path 42. (Id. ¶¶ 135–37.) 6 The Court finds CAISO’s multiple public statements from 2011 through 2013 7 acknowledging the Path 42 project and the expected increase to IID’s MIC are sufficient 8 to support, at this stage of the litigation, an inference that CAISO implicitly assented to the 9 alleged contract, namely, that CAISO would increase IID’s MIC in exchange for IID’s 10 upgrades to its side of Path 42. It is these allegations that also distinguish the instant case 11 from those upon which CAISO relies. The plaintiffs in HMBY, LP v. City of Soledad did 12 not allege that the defendants suggested they would approve the plaintiffs’ land 13 development projects if the plaintiffs expended resources on those developments. No. C12- 14 00107, 2012 WL 1657124, at *1, *4 (N.D. Cal. May 10, 2012). The court found the simple 15 fact that plaintiffs expended such resources, alone, did not bind the defendants to process 16 and approve the plaintiffs’ projects. Id. at *4. Similarly, the court in Gateway Rehab & 17 Wellness Center, Inc. v. Aetna Health, Inc. dismissed the plaintiff’s implied breach of 18 contract claim because it did “not plausibly allege[] it possessed anything beyond a mere 19 expectation that [the d]efendant would reimburse it for services rendered to Patients.” No. 20 SACV 13-0087 DOC (MLGx), 2013 WL 1518240, at *3 (C.D. Cal. Apr. 10, 2013). 21 Because the plaintiff “never allege[d] that it made known to [the d]efendant that it expected 22 [the d]efendant to continue to reimburse it, nor that [the d]efendant was somehow made 23 aware of this expectation[,]” the court concluded the plaintiff failed to allege mutual assent 24 on the defendant’s part. Id. 25 Unlike the plaintiffs in HMBY and Gateway, IID here has alleged that it made known 26 to CAISO its intent to upgrade Path 42 following CAISO’s proposal and approval of the 27 project. Following IID’s announcement, CAISO continued to state the necessity of the 28 project and the resulting increase to IID’s MIC. For these reasons, the Court rejects 17 15-CV-1576-AJB-RBB 1 CAISO’s argument that it did not assent to the contract as a basis for dismissing the breach 2 of implied contract claim. 3 2. Statute of Frauds 4 CAISO alternatively argues that even if it assented to the contract, that the contract 5 could not be performed within one year renders it unenforceable under the statute of frauds. 6 (Doc. No. 28-1 at 29–30.) IID counters that its performance takes the contract outside the 7 statute of frauds’ purview. (Doc. No. 34 at 30.) 8 “An agreement that by its terms is not to be performed within a year from the making 9 thereof” is invalid if not in writing. Cal. Civ. Code § 1624(a)(1). However, “[w]here the 10 contract is unilateral, or, though originally bilateral, has been fully performed by one party, 11 the remaining promise is taken out of the statute [of frauds], and the party who performed 12 may enforce it against the other.” Secrest v. Sec. Nat’l Mortg. Loan Trust 2002-2, 167 Cal. 13 App. 4th 544, 556 (2008) (citation omitted); see Dougherty v. Cal. Kettleman Oil Royalties, 14 9 Cal. 2d 58, 81 (1937). 15 Reviewing the allegations of the FAC, the Court finds IID has sufficiently alleged 16 its full performance, thus removing the implied contract from the statute of frauds’ reach. 17 See Dougherty, 9 Cal. 2d at 81; Secrest, 167 Cal. App. 4th at 556. IID alleges it invested 18 over $30 million in constructing the upgrades to its side of Path 42. (Doc. No. 26 ¶¶ 135– 19 37.) IID further alleges the upgrades were completed in January 2015. (Id. ¶ 136.) Such 20 allegations sufficiently allege IID’s full performance for purposes of removing the implied 21 contract from the statute of frauds’ reach because it required IID to do something more 22 than the mere payment of money, specifically, physically constructing the upgrades. See 23 Secrest, 167 Cal. App. 4th at 556 (explaining that “[t]he principle that full performance 24 takes a contract out of the statute of frauds has been limited to the situation where 25 performance consisted of conveying property, rendering personal services, or doing 26 something other than payment of money”). The Court therefore DENIES IN PART 27 CAISO’s motion to the extent it seeks dismissal of the breach of implied contract claim. 28 // 18 15-CV-1576-AJB-RBB 1 B. 2 CAISO seeks dismissal of the conversion claim because IID fails to allege how it 3 was entitled to compensation for CAISO’s alleged use of IID’s transmission facilities or 4 that IID had exclusive possession or control of the facilities. (Doc. No. 28-1 at 31.) IID 5 counters, arguing that pleading ownership alone is sufficient, but even if exclusive 6 possession need also be pleaded, it has done so. (Doc. No. 34 at 30–31.) Conversion 7 Conversion under California law has three elements: (1) ownership or right to 8 possession of property, (2) wrongful disposition of the property right of another, and (3) 9 damages. G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 906 10 (9th Cir. 1992). Reviewing the allegations of the FAC, the Court finds IID’s conversion 11 claim easily passes muster under Rule 12(b)(6). IID alleges it owns the transmission 12 facilities. (Doc. No. 26 ¶ 52.) The Court finds this allegation sufficient to satisfy the first 13 element of the claim, notwithstanding CAISO’s argument that IID has failed to allege 14 exclusive possession or control. (Doc. No. 28-1 at 31.) What CAISO ignores is that right 15 to possession is only one way of establishing the first element. A plaintiff may also plead 16 ownership. See Kremen v. Cohen, 337 F.3d 1024, 1029 (9th Cir. 2002) (stating a plaintiff 17 must show “‘ownership or right to possession of property’” (quoting G.S. Rasmussen & 18 Assocs., Inc., 958 F.2d at 906) (emphasis added)). IID has done that here. 19 IID further alleges CAISO has used IID’s transmission facilities to import 20 substantial out-of-state power without compensating IID for this use and that this 21 unauthorized use damages IID by rendering the used capacity “unavailable to IID and 22 restrict[s] the development of new generation in IID’s BAA.” (Id. ¶¶ 9.C, 9.D, 163.) The 23 Court finds these allegations sufficient to satisfy the last two elements of IID’s conversion 24 claim. Accordingly, the Court DENIES IN PART CAISO’s motion to dismiss to the extent 25 it seeks dismissal of IID’s conversion claim. 26 C. 27 CAISO argues dismissal of the quantum meruit and restitution claims are 28 appropriate because IID has failed to allege that CAISO benefited from the Path 42 Quantum Meruit and Restitution 19 15-CV-1576-AJB-RBB 1 upgrades or that CAISO requested them. (Doc. No. 28-1 at 32.) IID argues CAISO’s 2 position should be rejected in light of IID’s allegations to the contrary. (Doc. No. 34 at 31.) 3 Under California law, quantum meruit is “an equitable remedy implied by the law 4 under which a plaintiff who has rendered services benefiting the defendant may recover 5 the reasonable value of those services when necessary to prevent unjust enrichment of the 6 defendant.” In re De Laurentiis Entmt. Grp., Inc., 963 F.2d 1269, 1272 (9th Cir. 1992). 7 The elements of this claim are (1) that the plaintiff performed certain services for the 8 defendant, (2) their reasonable value, (3) that they were rendered at defendant’s request, 9 and (4) that they were unpaid. Haggerty v. Warner, 115 Cal. App. 2d 468, 475 (1953). To 10 state a claim for quantum meruit, a plaintiff must allege it acted pursuant to either an 11 express or implied request for services and that the services rendered benefited the 12 defendant. Day v. Alta Bates Med. Ctr., 98 Cal. App. 4th 243, 248 (2002). While the 13 plaintiff need not plead the existence of a contract, it must show that “the services were 14 rendered under some understanding or expectation of both parties that compensation 15 therefore was to be made.” Huskinson & Brown, LLP v. Wolf, 32 Cal. 4th 453, 458 (2004) 16 (quoting Estate of Mumford, 173 Cal. 511, 523 (1916)); see also Maglica v. Maglica, 66 17 Cal. App. 4th 442, 455 (1998) (noting quantum meruit theory “operates without an actual 18 agreement of the parties”).10 19 The only elements at issue are whether IID has sufficiently alleged that CAISO 20 requested the upgrades to Path 42 and that CAISO benefited from those upgrades. (Doc. 21 No. 28-1 at 32.) Reviewing the allegations of the FAC, the Court finds IID has. IID alleges 22 that CAISO recommended the Path 42 upgrades in a memorandum from CAISO’s 23 management to its board of governors in 2011. (Doc. No. 26 ¶¶ 103–04.) CAISO approved 24 the recommendation in its 2010/2011 Transmission Plan, in which CAISO proposed to 25 26 27 28 10 The Court considers the quantum meruit and restitution claims together because a claim for unjust enrichment may properly be construed “as a quasi-contract claim seeking restitution.” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (quoting Rutherford Holdings, LLC v. Plaza Del Rey, 223 Cal. App. 4th 221, 231 (2014)). 20 15-CV-1576-AJB-RBB 1 reconductor Path 42. (Id. ¶¶ 107–10.) CAISO repeatedly stated that should these upgrades 2 be accomplished, IID’s MIC would correspondingly increase. (Doc. No. 26 ¶¶ 126, 133.) 3 Accepting these allegations as true, the Court finds IID has sufficiently alleged that 4 “CAISO implicitly requested, by and through its conduct, that IID perform the work, labor, 5 and services” to Path 42. (Id. ¶ 236.) See Earhart v. William Low Co., 25 Cal. 3d 503, 506 6 (1979) (holding that if the trial court finds plaintiff’s allegations that he performed work at 7 defendant’s urging—work that the parties had long negotiated—to be true, then “the 8 principles of fairness support plaintiff’s recovery for the reasonable value of his labor”). 9 The Court finds IID has also sufficiently alleged that CAISO benefited from the 10 upgrades. Specifically, IID alleges CAISO benefited by using IID’s transmission system, 11 without compensation to IID, “to import power from Arizona and points east to replace the 12 power lost from the closure of SONGS.” (Id. ¶¶ 162(e), 163.) This sufficiently alleges an 13 advantage conferred onto CAISO at IID’s expense. See First Nationwide Sav. v. Perry, 11 14 Cal. App. 4th 1657, 1662 (1992) (“A person is enriched if the person receives a benefit at 15 another’s expense. Benefit means any type of advantage.” (citation omitted)). For these 16 reasons, the Court DENIES IN PART CAISO’s motion to the extent it seeks dismissal of 17 the quantum meruit and restitution claims. California’s Unfair Competition Law (“UCL”) 18 D. 19 CAISO finally argues dismissal of the UCL claim is appropriate because IID’s 20 allegations fail to make out a claim under any of the three prongs. (Doc. No. 28-1 at 32– 21 33.) “Because Business and Professions Code section 17200 is written in the disjunctive, 22 it establishes three varieties of unfair competition—acts or practices which are unlawful, 23 or unfair, or fraudulent.” Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 24 163, 180 (1999) (citation and internal quotation marks omitted). IID alleges that CAISO’s 25 conduct has violated all three prongs of the UCL. (Doc. No. 28 ¶¶ 223–24.) The Court will 26 consider each prong in turn. 27 1. 28 Unlawful Prong “By proscribing ‘any unlawful’ business practice, section 17200 borrows violations 21 15-CV-1576-AJB-RBB 1 of other laws and treats them as unlawful practices that the unfair competition law makes 2 independently actionable.” Cel-Tech Commc’ns, Inc., 20 Cal. 4th at 180 (citation and 3 internal quotation marks omitted). The UCL’s “coverage is sweeping, embracing anything 4 that can properly be called a business practice and that at the same time is forbidden by 5 law.” Id. (quoting Rubin v. Green, 4 Cal. 4th 1187, 1200 (1993)) (internal quotation marks 6 omitted). CAISO argues dismissal of the unlawful UCL claim is warranted because IID 7 has not alleged a violation of any law. (Doc. No. 28-1 at 33) The Court agrees. While IID 8 has sufficiently alleged its conversion, quantum meruit, and restitution claims, “common 9 law violation[s] such as breach of contract [are] insufficient” to serve as predicates for an 10 unlawful UCL claim. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1044 11 (9th Cir. 2010). The Court therefore GRANTS IN PART CAISO’s motion and 12 DISMISSES IID’s unlawful UCL claim. Because IID’s antitrust claims have been 13 dismissed with prejudice, the dismissal of the unlawful UCL claim is also WITH 14 PREJUDICE. 15 2. Unfair Prong 16 An act or practice is “unfair” under the UCL if a competitor’s conduct “threatens an 17 incipient violation of an antitrust law, or violates the policy or spirit of one of those laws 18 because its effects are comparable to or the same as a violation of the law, or otherwise 19 significantly threatens or harms competition.” Cel-Tech Commc’ns, Inc., 20 Cal. 4th at 187 20 (emphasis added). In other words, unfair acts or practices must “be tethered to some 21 legislatively declared policy or proof of some actual or threatened impact on competition.” 22 Id. at 186–87. 23 CAISO argues that dismissal of the unfair UCL claim is warranted because IID has 24 failed to allege an antitrust violation. (Doc. No. 28-1 at 33; Doc. No. 35 at 11.) While this 25 is true, it is not the only way in which an unfair UCL claim may be pled. Rather, an unfair 26 UCL claim may also be predicated on conduct that “violates the policy or spirit of [the 27 antitrust] laws because it[] . . . significantly threatens or harms competition.” Cel-Tech 28 Commc’ns, Inc., 20 Cal. 4th at 187. “Acts that violate the spirit of the antitrust laws include 22 15-CV-1576-AJB-RBB 1 ‘horizontal price fixing, exclusive dealing, or monopolization.’” Obesity Research Inst., 2 LLC v. Fiber Research Int’l, LLC, No. 15-CV-00595-BAS(MDD), 2016 WL 739796, at 3 *9 (S.D. Cal. Feb. 25, 2016) (quoting Celebrity Chefs Tour, LLC v. Macy’s, Inc., 16 F. 4 Supp. 3d 1141, 1156 (S.D. Cal. 2014)). 5 The Court finds IID has sufficiently alleged monopolistic conduct that threatens 6 competition for purposes of Rule 12(b)(6). Specifically, by depriving IID of its expanded 7 MIC, generators of renewable energy located within IID’s BAA who cannot interconnect 8 directly with the CAISO grid cannot compete with other generators for the business of load 9 serving entities located in or through the CAISO grid. (Doc. No. 26 ¶ 194.) This reduction 10 in competition for generation potentially raises the costs of renewable energy for those 11 entities. (Id. ¶ 195.) The reduction to IID’s expanded MIC has also jeopardized certain 12 renewable energy projects in IID’s BAA. (Id. ¶ 197.) The additional burdens on IID, 13 through the costs of the upgrades and CAISO’s unauthorized use of IID’s transmission 14 facilities, ultimately affect the rates passed onto the public. (Id. ¶¶ 200–01.) IID alleges 15 CAISO has engaged in its conduct to further its monopoly power in the relevant markets 16 by forcing IID to join CAISO as a PTO. (Id. ¶¶ 9.C–F, 149, 162.) The Court finds these 17 allegations sufficiently allege unfair acts or practices that threaten competition. Thus, the 18 Court DENIES IN PART CAISO’s motion. 19 3. Fraudulent Prong 20 Unlike common law fraud, a party can show a violation of the UCL’s fraudulent 21 practices prong without allegations of actual deception. See Morgan v. Harmonix Music 22 Sys., Inc., No. C08-5211 BZ, 2009 WL 2031765, at *5 (N.D. Cal. July 7, 2009). The term 23 “fraudulent” as used in section 17200 “only requires a showing [that] members of the 24 public ‘are likely to be deceived.’” Puentes v. Wells Fargo Home Mortg., Inc., 160 Cal. 25 App. 4th 638, 645 (2008) (quoting Saunders v. Superior Court, 27 Cal. App. 4th 832, 839 26 (1994)). “Unless the challenged conduct ‘targets a particular disadvantaged or vulnerable 27 group, it is judged by the effect it would have on a reasonable consumer.’” Id. (quoting 28 Aron v. U-Haul Co., 143 Cal. App. 4th 796, 806 (2006)). 23 15-CV-1576-AJB-RBB 1 CAISO argues that dismissal of the fraudulent UCL claim is warranted because IID 2 has not alleged the public was deceived. (Doc. No. 28-1 at 33.) IID responds that it has 3 alleged harm to the public. (Doc. No. 34 at 31.) However, harm to the public and deception 4 of the public are not synonymous. Having reviewed the FAC, the Court finds it is devoid 5 of any allegations that CAISO’s conduct has or is likely to deceive the public or that the 6 public was even aware of CAISO’s conduct. See Capella Photonics, Inc. v. Cisco Sys., 7 Inc., 77 F. Supp. 3d 850, 865 (N.D. Cal. 2014) (dismissing fraudulent UCL claim because 8 “Cisco d[id] not allege that members of the public have been deceived by Capella’s alleged 9 fraudulent misrepresentations . . . . Indeed, Cisco does not even allege that members of the 10 public are aware of Capella’s misrepresentations”). CAISO’s alleged deception of IID 11 itself does not require a contrary conclusion. See Watson Labs., Inc. v. Rhone-Poulenc 12 Rorer, Inc., 178 F. Supp. 2d 1099, 1121 (C.D. Cal. 2001) (stating a corporate-competitor 13 “is not entitled to the protection of [the fraudulent] prong of [section] 17200 because it is 14 not a member of the public or a consumer entitled to such protection. The Court has 15 identified no case under the ‘fraudulent’ prong of [section] 17200 allowing one competitor 16 to proceed against another on the basis that the defendant deceived him”). As such, the 17 Court GRANTS IN PART CAISO’s motion and DISMISSES WITHOUT 18 PREJUDICE the fraudulent UCL claim. 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 24 15-CV-1576-AJB-RBB 1 CONCLUSION 2 Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART 3 CAISO’s motion to dismiss. (Doc. No. 28.) The Court DISMISSES IID’s federal antitrust, 4 breach of tariff, and unlawful UCL claims WITH PREJUDICE. The Court DISMISSES 5 the fraudulent UCL claim WITHOUT PREJUDICE. IID may file a second amended 6 complaint curing the deficiencies noted herein with respect to the fraudulent UCL claim 7 no later than twenty-one days following this order’s issuance. Failure to amend the 8 complaint will result in dismissal of that claim with prejudice. The Court DENIES AS 9 MOOT IID’s request to respond to CAISO’s exhibit. (Doc. No. 44.) 10 11 IT IS SO ORDERED. 12 13 Dated: August 1, 2016 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 15-CV-1576-AJB-RBB

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