JACK TOPPING v. SERRA BRAVO ENTERPRISES LLC

Case Number

23CV03927

Case Type

Hearing Date / Time

Wed, 11/06/2024 - 10:00

Nature of Proceedings

1. The Instant Action Is Barred By Public Utilities Code § 1759; and 2. Defendants Affirmative Defense For Judicial Abstention Disposes Of The Action

Tentative Ruling

1. Attorneys

For Plaintiff: James L. Hudgens; Raymond Chandler

For Defendant: Paul Burns; Solange D. Sanhueza

Acknowledgements.

The Court acknowledges and appreciates the professional work done by counsel in the case. The case has been contentious; acrimonious at times. The Court apologizes for grammatical and typographical errors in this analysis and decision.

Background.

This case was filed in 9/2023 as a class action complaint; sets out 10 Causes of Action. Plaintiff claims the Defendant is (a) unlawfully charging individual bus fares not permitted by the California Public Utilities Commission to Plaintiff and the class members, most of whom are students at UCSB; (b) operating buses that violate safety and licensing requirements as set forth by the Public Utilities Code (“PUC”) and Vehicle Code; and (c) employing bus drivers not properly licensed to operate buses transporting the general public. Plaintiff alleges he is an individual residing in Santa Barbara County who, within the applicable period of limitations prior to the commencement of this action, paid an individual fare for round-trip transportation on Defendant’s bus. Defendant Sierra Bravo Enterprises LLC, dba Jump On The School Bus (collectively “Jump” or “Defendant”), has at all times relevant hereto provided, and continues to provide, transportation services in Santa Barbara County through the use of (former) school buses. Based on the California Public Utilities Commission website, at all times relevant hereto, Jump held a Charter Party-A certificate issued by the California Public Utilities Commission; Certificate #PSG0028446. Plaintiffs bring this case as a class action pursuant to California Code of Civil Procedure § 382 on behalf of the following Classes:

A. “The Fare—Paid Class”: A class consisting of all persons who paid Jump for bus transportation from Isla Vista to downtown Santa Barbara during the four-year period prior to the date of the filing of this Complaint.

B. “The Stranded Subclass”: A subclass consisting of all persons who paid Jump for round-trip bus transportation from Isla Vista to downtown Santa Barbara and who were not provided with the return trip, during the four-year period prior to the date of the filing of this Complaint. (The above defined classes are referred to collectively as “the Classes”).

The 10 Causes of Action are:

1. Violation of Public Utilities Code 5401.

2. Violation of Public Utilities Code 451.

3. Violation of Public Utilities Rule 4.01

4. Violation of Public Utilities Rule 4.02

5. Violation of Public Utilities Rule 5.01

6. Violation of Public Utilities Code 21702

7. Violation of Public Utilities Code 34505.1

8. Conversion

9. Breach of Contract

10. Violation of Business & Professions Code §17200 et seq.

Plaintiff’s Partial Dismissal

On 8/16/24 Plaintiff moved to dismiss causes of action ## 3 through 7 and 10.

Supported by the Declaration of Plaintiff’s counsel; summarized: Testifies: “I was unaware of the PUC investigation and Citation prior to filing this action. Because the causes of action sought to be dismissed involve injunctive relief only, no consideration has been requested or provided. Although the tenth cause of action for violation of Bus. & Prof. Code 17200 does seek restitution, it is duplicative of the first, second eighth and ninth causes of action that also pray for monetary damages. This case has not been certified and notice has not been given to class members. As the PUC Citation reveals, transportation companies must periodically submit updated records of their drivers, vehicles, inspection reports and other documentation to the PUC. To monitor adherence to an injunction in a case such as this, not only would the Court need access to these documents, it would also need access to various government data bases, and it would need to conduct site visits, and then it would need to compare all of the information gathered to what is actually happening on the ground at any given time. The PUC has performed these functions and based on these facts, I believe that the PUC is in the best position to monitor continued compliance and take remedial action, rather than the Court taking on such burden through injunctions and contempt proceedings.”

On 8/21/24 this Court signed the Request made by counsel: “Given that Plaintiff has not moved for class certification and that no formal notice of the pendency of this action has been sent to the putative class members, notice of this dismissal is not required to be provided to putative class members pursuant to Rule 3.770(a) and (c) of the California Rules of Court.”

Trial Brief’s

On 10/9/24 both sides submitted Trial Briefs re: Certification. Plaintiff’s Brief was 21 pages; SBE’s Brief was 174 pages. Those briefs are relied upon, in part, for this hearing.

Defendant’s Motion to Bifurcate

Filed 10/14/24; summarized: Argues that:

1. The Instant Action Is Barred by Public Utilities Code § 1759; and

2. Defendants affirmative defense for judicial abstention disposes of the action.

Contends that:

A. Before proceeding with the Class Certification Hearing, this Court must determine whether or not Public Utilities Code § 1759 prohibits this Court from exercising jurisdiction over Plaintiff’s Claims

B. This Court should adjudicate SBE’s affirmative defense of Judicial Abstention before it takes evidence on Topping’s claim that SBE needed a PSC Authority License versus The Class A Charter License it currently holds to conduct its operation’s.

C. It would be futile for the Court to consider witness testimony and evidence on whether or not SBE’s operations exceeded its Class A Charter authority before determi9ning whether the Court has jurisdiction and/or will elect to abstain from exercising its Jurisdiction on the CPUC’s licensing issue.

Plaintiff’s Qualified Non-opposition to SBE’s Motion to Bifurcate Trial

Filed 10/14/24; summarized: Plaintiff requests that the Court:

1. Deny Defendant's Motion as to the request to exercise judicial abstention, and

2. Grant the motion to bifurcate trial to first decide the legal issue of jurisdiction without

witness testimony.  

Reports that on August 21, 2024, the Court granted Plaintiff's motion to dismiss causes of action three through seven, and ten. At that time, it was Plaintiff's intent to dismiss requests to the Court to enjoin Defendant from charging individual fares. With the Court's approval, Plaintiff will dismiss all claims for injunctive relief. Plaintiff only seeks a ruling by the Court that Defendant has violated PUC Sections 5401, 451, and a ruling that Defendant converted Plaintiffs and the class members' funds. Should the court make such rulings, Plaintiff agrees that the PUC should decide what compliance monitoring is needed. This will alleviate Defendant's concern that the Court will have to "engage in extrajudicial monitoring of SBE's future operations (and) assume the function of administrative agency."

Because the PUC has no authority to award damages, that authority will remain within the

province of the Court. If the Court finds that it has jurisdiction to hear this case, there is no

need for the Court to abstain from certifying this action.

This Court has concurrent jurisdiction with the Commission. Plaintiff does not oppose bifurcating the trial to allow the Court to first determine the issue of jurisdiction. Plaintiff agrees that because such issue is strictly a legal issue, witness testimony would be of no value.

Defendant argues that this Court has no jurisdiction. Plaintiff addressed this issue at

length in his Trial Brief and requests that the Court review that section of the Trial Brief. [The Court did so.]

Plaintiff will address those points made by Defendant in the Motion to Bifurcate that were not known to Plaintiff when the motion was served on Saturday, at 1:07 a.m.

Defendant cites Anchor Lighting v. S. Cal. Edison Co. (2006) 142 Cal. App. 4th 541 as an example of interference with the PUC's rule-making authority. It is not applicable because here, there is no "Act" providing "irrevocable" PUC orders related to sightseeing. Here, a determination that Defendant violated PUC Section 5401 would not modify any PUC Code section or rule or rate; there is no direct or indirect challenge to the PUC.

Defendant also relies on Schell v. S. Cal. Edison Co., 204 Cal. App. 3d 1039. It is not applicable here becasue Plaintiff is not challenging the validity of PUC Code Sections 5401 or 451. They are clear. Nor is Plaintiff seeking an interpretation of the PUC's definitions of sightseeing. They are clear. This class action only alleges that given the PUC's definition of sightseeing (and common sense), transporting busloads of students to a bar late at night is not sightseeing and therefore Defendant has violated PUC Code Section 5401 and its derivative Section 451.

The Commission made no findings that absolve SBE from a violation of PUC section 5401. The Court is invited to revi3ew that section of the Plaintiff’s Trial Brief.

SBE’s Reply

Filed 10/14/24; summarized. Plaintiff agrees that this Court should bifurcate and decide the jurisdictional issue raised by Defendant. Namely, that Public Utilities Code section 1759 bars this Court’s reversal of the CPUC’s determination of May 10, 2023, under Craig Jenkins CPUC complaint PSG-5884 that Defendant SBE, d/b/a Jump on the School Bus: “[w]as operating within the scope of its TCP Class A Certificate As such, "Jump on the School Bus" does not need to obtain a Passenger Stage Corporation (PSC) authority.”  In order to fully ascertain the import of the CPUC’s May 10th, 2023 determination that Defendant SBE “[w]as operating within the scope of its TCP Class A Certificate . . . .” the Court must look to both the CPUC Complaint made by Craig Jenkins in CPUC Complaint No. PSG-5884 and the First Cause of action in the Complaint at bar. In Jenkins CPUC Complaint PSG- 5884 Jenkins charges that Defendant SBE, d/b/a Jump on the School Bus: “Jump on the School Bus will charge customers the individual fare of $20 without a PSC [Passenger Stage Corporation] license or approved tariff table which is completely outside the scope of the Charter Party A authorities they currently operate under.” . . .  “I want them to cease and desist immediately.”

Plaintiff’s Opposition repeats his implausible claim that the CPUC did not exonerate SBE from the charge that Defendant SBE unlawfully charged individual fares under its Class A Charter license in violation of PUC § 5401. The Court’s inquiry should stop at this point and a lack of the Court’s jurisdiction must be found. If the Court is going consider Plaintiff’s argument, which requires the Court to ignore the plain meaning of the CPUC’s May 10th, 2023, decision, and the fact that Plaintiff requires this Court to get into the CPUC regulatory business of determining the nuance of which license a Charter Bus carrier should obtain from CPUC, then the Court should hear witness testimony. 

SBE’s Amended Motion for Bifurcation

Was submitted to conform to the Court's October 16 request for briefs that addresses only those issues to be heard at the trial currently set for October 24-25, 2025 [later continued to the Law & Motion Calendar on 11/6/24].

71 pages; summarized: SBE moves the Court for an order finding:

1. The Instant Action Is Barred by Public Utilities Code § 1759; or, alternatively

2. Defendants affirmative defense for judicial abstention disposes of the action.

The Complaint falsely purports to be a consumer class action against a public Utilities charter bus company, SBE which is licensed by the CPUC.  SBE conducts round trip routes to historic downtown Santa Barbara from Isla Vista pursuant to its Class A Charter license from CPUC on Thursday nights. 

The evidence shows that the complaint is not a true consumer complaint at all. The complaint was filed at the instigation of Craig Jenkins, owner of SBE’s competitor, Bill’s Bus, through Jenkins use of his mechanic, Jack Topping, as Jenkins’ strawman.

Topping’s First and Second Causes of action allege SBE violated Public Utilities Code § 5401 because it holds as Class A Charter license, and it charged individual fares for its Thursday night round trips to downtown Santa Barbara. Strawman Toping alleges that SBE did not have a Passenger Stage Corporation Authority (“PSC”) when it charged such individual fares and thus violated PUC § 5401.  These allegations are identical to the allegations Strawman Topping and Craig Jenkins made in their Complaint to the CPUC on April 4th, 2023; designated as PSG-5884 by the CPUC.

Defendant SBE has asserted Public Utilities Code § 1759 (a) as a bar to this Court’s exercise of jurisdiction over Toppings and Jenkins licensing complaints against SBE here. 

SBE has also raised judicial abstention as its 10th affirmative defense and has asked this Court to abstain from hearing this action on grounds that the CPUC is the agency with primary licensing jurisdiction over SBE’s Class A Charter license. 

                                                                                   

Plaintiff’s Amended Trial Brief re Issues Reserved for Bifurcated Trial

Filed 10/22/24: summarized: The Amended Trial Brief was submitted to conform to the Court's October 16 request for briefs that addresses only those issues to be heard at the trial currently set for October 24-25, 2025 [later continued to the Law & Motion Calendar on 11/6/24]. Consequently, all discussion on certification and damages has been omitted.

Argues that:

This Court has concurrent jurisdiction with the Commission and the Commission has not absolved defendant of the violation of PUC Section 5401.

The Commission has made no determination re PUC Section 5401. On May 3, 2023, the Commission issued a Notice to Cease-and-Desist to Defendant. One week later, the Commission retracted the order and stated that Defendant was "acting within the scope of its authority." (Trial Exh. 6, Defendants Doc. Prod. See SBE 00293-294, 00694). Defendant interprets this as a decision by the Commission that the charging of individual fares for college nights trips was lawful because the trips qualify as sightseeing tours. But a review of the cease-and-desist notice reveals that the four code violations alleged in the notice are unrelated to individual fares and/or sightseeing.

The Commission has made no findings or conclusions of law, nor has it informally ruled on the sightseeing question.

No documents in the Commission’s document production mention individual fares. None discuss defendant’s sightseeing tours.

Regarding judicial abstention: With the Court’s approval plaintiff will dismiss all claims for injunctive relief; Plaintiff inadvertently overlooked to do that when is dismissed B. and P. 17200 and other cause of action. On August 21, 2024, the Court granted Plaintiff's motion to dismiss causes of action three through seven, and ten. At that time, it was Plaintiff's intent to dismiss requests to the Court to enjoin Defendant from charging individual fares. Plaintiff only seeks a ruling by the Court that Defendant has violated PUC Sections 5401, 451, and a ruling that Defendant converted Plaintiff's and the class members' funds. Should the court make such rulings, Plaintiff agrees that the PUC should decide what compliance monitoring is needed. This will alleviate Defendant's concern that the Court will have to "engage in extrajudicial monitoring of SBE's future operations (and) assume the function of administrative agency." (M. Bifurcate, 12:6-17). Because the PUC has no authority to award damages, that authority will remain within the province of the Court.

If the Court finds that it has jurisdiction to hear this case, there is no need for the Court to abstain from certifying this action.

The Court’s Decision.

The Complaint falsely purports to be a consumer class action against a public utilities charter bus company. SBE is licensed by the CPUC. SBE conducts round trip routes to historic downtown Santa Barbara from Isla Vista pursuant to its Class A Charter license from CPUC on Thursday nights. The evidence shows that the complaint is not a true consumer complaint at all.

The instant complaint was filed at the instigation of Craig Jenkins, owner of SBE’s competitor, Bill’s Bus, through Jenkins use of his mechanic, Jack Topping, as Jenkins’ strawman.

Topping’s First and Second Causes of action allege SBE violated Public Utilities Code § 5401 because it holds as Class A Charter license, and it charged individual fares for its Thursday night round trips to downtown Santa Barbara. Topping alleges that SBE did not have a Passenger Stage Corporation Authority (“PSC”) when it charged such individual fares and thus violated PUC § 5401. These allegations are identical to the allegations Topping and Craig Jenkins made in their Complaint to the California Public Utilities Commission (“CPUC”) on April 4th, 2023; designated as PSG-5884 by the CPUC.

In Jenkins CPUC Complaint, Jenkins alleged: “Jump on the School Bus will charge customers the individual fare of $20 without a PSC [Passenger Stage Corporation] license or approved tariff table which is completely outside the scope of the Charter Party

A authorities they currently operate under” . . .  “I want them to cease and desist immediately” (CPUC Complaint PSG-5884.)

Initially, the CPUC, issued the cease and desist order Jenkins demanded in PSG-5884.

However, after a protest by SBE’s principal, Sierra Falso, and a further investigation, CPUC issued a complete retraction of the Cease and Desist on May 10th, 2023, which states:

Defendant SBE, d/b/a Jump on the School Bus: “[w]as operating within the scope of its TCP Class A Certificate As such, "Jump on the School Bus" does not need to obtain a Passenger Stage Corporation (PSC) authority.” (Exhibit No. 3, Notice dated May 10th, 2023, from CPUC to SBE.)

SBE has asserted Public Utilities Code § 1759 (a) as a bar to this Court’s exercise of jurisdiction over Toppings and Jenkins licensing complaints against SBE. SBE has also raised judicial abstention as its 10th affirmative defense and has asked this Court to abstain from hearing this action on grounds that the CPUC is the agency with primary licensing jurisdiction over SBE’s Class A Charter license.

The Complaint is Barred by PUC § 1759 (a)

Topping’s claim that the CPUC’s May 10th, 2023, Decision does not relate to SBE’s charging individual fares for its Thursday night trips is contradicted by Topping’s Counsel’s filings with CPUC In CPUC Complaint No. PSG-5884. In Toppings and Jenkins Complaint against SBE in CPUC Complaint PSG-5884 Topping’s attorney in this action, issued his letter of December 6th, 2024, explaining precisely how CPUC Complaint No. PSG-5884 directly addresses Topping’s claim that SBE is unlawfully charging individual fares.

Public Utilities Commission action is subject to judicial review, the ‘manner and scope’ of which is established by the Legislature. (Cal. Const., art. XII, § 5.) ‘Pursuant to this constitutional provision the Legislature enacted article 3 of chapter 9 of the Public Utilities Act, entitled “Judicial Review …” (§ 1756 et seq.),’ which ‘prescribes a method of judicial review that is narrow in both “manner and scope.”’ (San Diego Gas & Electric Co. v. Superior Court (Covalt) (1996) 13 Cal.4th 893, 915.)

Among the provisions of that article is subdivision (a) of section 1759, which provides that ‘[n]o court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court.’ (Covalt p. 917)

Section 1759, not only bars a claim against public utility bus carriers regulated by the CPUC, when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would "reverse, correct, or annul" that order or decision, such as the May 10th, 2023 decision here, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would "hinder" or "frustrate" or "interfere with" or "obstruct" that policy. (See Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 4.)

Where the CPUC is required to interpret the Public Utilities Code, its interpretation (even

if invalid) will not be disturbed unless ‘it fails to bear a reasonable relation’ to the statute's

purposes and language. (Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781, 796.)

In Anchor Lighting v. Southern California Edison Co. (2006) 142 Cal.App.4th 541, the

plaintiff argued it fell within the definition of a “small commercial customer” under CPUC

regulations and thus qualified for a rate reduction. (at p. 546.) The trial court sustained the defendant's demurrer on the ground it lacked jurisdiction under section 1759. (at p. 547.) The Second Appellate District subsequently affirmed the trial court's order, holding the expanded definition of “small commercial customer” sought by the plaintiff's lawsuit would impact the CPUC-approved rate reductions and related financing scheme. (at p. 550.)

As a result, “the interference with the CPUC's ratemaking function is clear.” (see Davis, 236 Cal.App.4th at p. 643 [held § 1759 barred claims due to the “complexity” of interpreting concepts relating to tariff application deadlines].)

Likewise, in Schell v. Southern Cal. Edison Co. (1988) 204 Cal.App.3d 1039, 1042-43 the

Fourth Appellate District was asked to determine whether a recreational vehicle park should be charged electricity rates applicable to “mobile homes.” (Id. at pp. 1042–1043.) The court held such a determination was “within the exclusive purview of the [C]PUC as part of its continuing jurisdiction over rate making and rate regulation.” (Id. at p. 1046.) See Goncharov v. Uber Technologies, Inc. (2018) 19 Cal. App. 5th 1157,1173

These cases “stand for the general principle that even where a plaintiff seeks only to enforce a CPUC rule, the action is impermissible if its adjudication requires courts to determine how, or even whether, an ambiguous CPUC rule applies, because this type of determination is policymaking that would hinder or interfere with CPUC's exercise of its jurisdiction.” (North Star Gas Co. v. Pacific Gas and Electric Co. (N.D.Cal., Sept. 26, 2016, No. 15-cv-02575-HSG) 2016 WL 5358590, p. *13 (North Star); see Davis, at p. 640 [“in cases where the courts have found that the [CPUC does not have exclusive jurisdiction, the lawsuits have typically not required interpretation of [CPUC approved rules”].

Topping relies upon Hartwell Corp. v. Superior Court (2002) 27 Cal. 4th 256 to support its claim that this Court has jurisdiction to hear the matter. However, Hartwell involved a private water company that was not a utility that was regulated by CPUC. In that case the Supreme Court held: “We conclude that section 1759 does not preempt these lawsuits in superior court against the nonregulated water providers…” (Id. at p. 282.)

Here, there is no question that SBE is a CPUC regulated public utility. Hartwell is not controlling.

Topping also relies upon TruConnect Commc'ns, Inc. v. Maximus Inc. (2023) 91 Cal.

App. 5th 497, 511 and Uber Technologies Pricing Cases (2020) 46 Cal.App.5th 963, 970-971 for the proposition that: “Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful ... shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom. ... An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction ....” (Topping trial brief at 9:14-17)

This Court lacks jurisdiction to hear the Complaint because Topping claims no damages.

Topping also relies upon the forgoing case for the proposition that: “Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful ... shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom. ... An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction ....” (Topping trial brief at 9:14-17)

The complaint is novel and does not track with usual class action suits. Here, rather than have a proposed class representative, to wit: Plaintiff with personal knowledge of damages, such as an employee who claims he/she has not received rest breaks or overtime wages, Topping claims no injury and no actual damages at all. Topping made it clear he did not rely on SBE’s licensing status with the PUC when he paid $20 for a roundtrip fare to downtown Santa Barbara from Isla Vista at issue here. Topping admitted he never checked with CPUC to determine which license SBE held.

In Medina v. Safe-Guard Products, Internat., Inc. (2008) 164 Cal. App. 4th 105, 115, the

court upheld a demurrer sustained without leave to amend to a class action brought by a

customer of an unlicensed automobile maintenance service contract provider. The customer did not allege that he paid more for the service contract than what it was worth because of the company's unlicensed status and did not allege that he did not want the wheel and tire coverage in the first place.

There was no allegation that the company's unlicensed status caused the customer to part with the money he paid for the service contract. The Court held: “Here, there is no allegation that Medina relied on Safe-Guard's having a license as required by the vehicle service contract statutes, or that Safe-Guard's unlicensed status caused him to part with the money he paid for the tire and wheel contract.” (p. 115.)

Here, Topping made it crystal clear he did not rely upon SBE’s licensure to pay the $20 to take the Thursday night ride. (Dep. Trans. Jack Topping 32:19-24; Exhibit No. 6 to the trial brief; Ex No 7 here; declaration authenticating excerpt in trial brief.)

The Court must dismiss the action in its entirety since apparently now, no

injunctive relief and no damages are being claimed.

This Court’s further review of this matter is prohibited. (P.U.C. § 1759(a).)

The Court Finds in Favor of SBE’s

Affirmative Defense for Judicial Abstention.

After dismissing the 3rd-7th and 10th cause of action in the complaint, Topping’s remaining Causes of Action are:

First Cause of Action for Violation of PUC section 5401.

Second Cause of Action for Violation of PUC section 451.

Eighth Cause of Action for Conversion.

Ninth Cause of Action for Breach of Contract.

As to causes of action 2, 8, 9 the court must exclude any evidence. Plaintiff, Topping admitted in his deposition he had no knowledge of those causes of action. Topping’s First and Second Causes of action are identical to the allegations Topping and Jenkins made in their Complaint to the CPUC on April 4th, 2023; designated as PSG-5884 by the CPUC.

SBE has pleaded as its 10th Affirmative Defense that: “Upon information and belief: Plaintiff and or individuals who are in some way associated with Plaintiff, have filed administrative complaints with the Public Utilities Commission alleging the same false facts as set forth in the instant Complaint. In light of such proceedings the Court should abstain from adjudicating these same facts and controversies.”

Topping’s Complaint seeks a declaratory judgment and permanent injunctions as to the first and second causes of action that require this court to improperly act as a parallel public utilities commission.

As to Topping’s remaining First Cause of Action the Complaint seeks: “On the First Cause of Action: A declaratory judgment that Defendants have violated Cal. Public Utilities Code § 540.” Such a declaration would require this court to improperly supersede the CPUC findings on this precise issue and would require the Court to engage in extrajudicial monitoring of SBE’s operations to ensure SBE obtained a different carrier charter license to conduct its business.

As a general matter, a trial court may abstain from adjudicating a suit that seeks equitable remedies if "granting the requested relief would require a trial court to assume the functions of an administrative agency, or to interfere with the functions of an administrative agency." (Alvarado v Selma Convalescent Center (2007) 153 Cal.App.4th 1292, 1298.) A court also may abstain when "the lawsuit involves determining complex economic policy, which is best handled by the Legislature or an administrative agency." (Ibid.) In addition, judicial abstention may be appropriate in cases where "granting injunctive relief would be unnecessarily burdensome for the trial court to monitor and enforce given the availability of more effective means of redress." (Ibid.)

Here, Topping is asking this Court to enjoin SBE to cease its business operations and go and get a completely different type of passenger carrier license (A “PSC Authority”).

The CPUC is a state agency of constitutional origin with far-reaching duties, functions and powers. (Cal. Const., art. XII, § 1–6.) The Constitution confers broad authority on the

commission to regulate utilities, including the power to fix rates, establish rules, hold various types of hearings, award reparation, and establish its own procedures. (Id., § 2, 4, 6.) The commission's powers, however, are not restricted to those expressly mentioned in the Constitution: “The Legislature has plenary power, unlimited by the other provisions of this constitution but consistent with this article, to confer additional authority and jurisdiction upon the commission … .” (Cal. Const., art. XII, § 5.) (Covalt 13 Cal.4th 893, 914–915.

Under this constitutional provision the Legislature has enacted the Public Utilities Act (§ 201 et seq.), which grants the CPUC broad supervisory and regulatory authority over all public utilities in the state. (Covalt, at p. 915.)

But the CPUC's powers are not limited to those expressly conferred to it, because the

Legislature has authorized the Commission to do all things that are necessary and convenient in the exercise of its jurisdiction over public utilities. As is evident from the evidence in this case, CPUC conducts extensive investigations into the operators of its bus charter carriers and has the staff and protocols in place to perform such.

It would be both extraordinarily burdensome and virtually impossible for this Court to take over CPUC’s function and enforce any injunctions against SBE’s bus operations.

SBE’s 10th Affirmative Defense for Judicial Abstention.

Even if this Court had jurisdiction to engage the licensing regulatory function that Topping demands here [it does not] this Court will abstain from engaging such under the doctrine of judicial abstention.

Judicial abstention is appropriate when granting the requested relief would require a trial court to assume the functions of an administrative agency, or to interfere with the functions of an administrative agency. (Shamsian v. Dept of Conservation (2006) 136 Cal.App.4th 621, 642; in that case, as like this case, the parties agreed the trial court would determine certain threshold issues of law regarding the viability of plaintiff's claims for relief.)

This Court must reject Plaintiff’s request that this Court act as a parallel regulatory utilities commission and determine the nuance of which license SBE needs for its Thursday night operations and then enforce such. (See Ex 8 CPUC licensing category rules.)

To the extent Topping’s Counsel now claims he will waive any request for injunctive

relief then Toppings entire complaint fails. Pub. Util. Code §§ 5401 and 451 contain no remedy for any Plaintiff to do that. To the extent a restitution remedy was pleaded at all, Topping dismissed such when he dismissed his Business and Professions Code § 17200, Unfair Competition Claim when Topping dismissed his 10th Cause of Action.

Now Topping attempts to cobble together a restitution remedy by combining his request for a declaration that SBE violated Pub. Util Code §§ 5401 and 451, with Topping’s flawed claim for conversion. Under Topping’s current theory, the Court should find both that 1) SBE violated Pub. Util. Code §§ 5401 and 451 and 2) then find that somehow such violation comprised conversion of Topping’s $20 bus fare, and therefore the Court should order SBE to issue restitution to Topping (and the putative class) in the amount of the $20 bus fare.

Topping’s Complaint and the Evidence do not in any way support Topping’s conversion

cause of action.

This Court must uphold Topping’s Counsel’s stipulation that Topping has no

knowledge as to Topping’s conversion claim. Topping admitted at his deposition that he had no personal knowledge as to the eighth cause of action in the complaint. Topping’s Counsel entered into a stipulation that Topping had no knowledge of other than the first cause of action. (“In an effort to save time and money for everybody, I'm going to stipulate that Mr. Topping's personal knowledge is limited to the first cause of action regarding paying an individual fare to ride on the defendant's bus. He has no personal knowledge regarding any of the remaining cause of action, and further, that the information upon which the remaining causes of action two through ten are based does not come from Mr. Topping. It comes from other sources.”) (Jack Topping Deposition Transcript December 4th, 2023, 7:2-17; Ex 8,)

Here, Defendant was deprived of even inquiring at Topping’s deposition into how it is that Topping alleges Defendant SBE converted his $20. Court’s hold attorneys to their discovery related stipulations. “Of necessity, both the court and the opposing litigants must be able to rely upon the validity of stipulated resolutions of discovery disputes and to have them enforceable by order.” (See Young v.Rosenthal (1989) 212 Cal.App.3d 96, 116-117.)

The Court’s Summary of its findings:

1. The Instant Action Is Barred by Public Utilities Code § 1759; or, alternatively

2. Defendants affirmative defense for judicial abstention disposes of the action.