13 Cal. 4th 893, 920 P.2d 669, 55 Cal. Rptr. 2d 724 (1996)
In December 1993 Martin and Joyce Covalt filed a complaint in superior court against San Diego Gas & Electric Company seeking damages and injunctive relief.1 The Covalts alleged they owned and occupied a single-family residence in San Clemente adjacent to an SDG&E easement that had carried powerlines since 1928.2
They further alleged that in February 1990 SDG&E substantially increased the number of powerlines on the easement by adding a third 12 kV distribution circuit.3 SDG&E replaced single poles with double poles standing 12 feet apart and extended crossbars from 5-6 feet to 8.5 feet toward their property.4 This reconfiguration moved portions of the circuits 2.5 to 3.5 feet closer to their house.5
The complaint asserted five personal-injury counts seeking damages for medical monitoring, intentional and negligent infliction of emotional distress, and strict and negligent product liability.6 It also asserted three property-damage counts for trespass, nuisance, and inverse condemnation, plus a count for injunctive relief.7 The Covalts stated they purchased the house in 1990, later vacated it, and that the property was foreclosed upon by the mortgagor.8
SDG&E demurred on the ground that the superior court lacked subject-matter jurisdiction under Public Utilities Code section 1759 because any judgment would hinder or frustrate commission regulatory policies on electric and magnetic fields.9 The superior court overruled the demurrer.10 SDG&E petitioned the Court of Appeal for a writ of prohibition or mandate directing the trial court to sustain the demurrer and dismiss the complaint.11 The Court of Appeal granted an alternative writ, stayed proceedings, and ultimately issued a writ of mandate directing the trial court to vacate its order and enter a new order sustaining the demurrer without leave to amend.12 The Supreme Court granted review.13
The commission had addressed potential health effects of powerline electric and magnetic fields on a case-by-case basis before 1988.14 Beginning that year the Legislature directed the commission and the Department of Health Services to study the issue.15 The commission thereafter conducted formal proceedings that produced joint reports in 1989.16 It issued the Kramer-Victor decision in 1990.17 The commission entered an order instituting investigation in 1991.18 It received a consensus-group report in 1992.19 The commission adopted an interim policy decision in 1993.20 It issued a further decision in 1994 reaffirming the policy for new and upgraded facilities.21
Whether section 1759 of the Public Utilities Code bars a superior court action for property damage allegedly caused by electric and magnetic fields arising from powerlines owned and operated by a public utility?22
Section 1759 bars any superior court action that would hinder or frustrate a declared supervisory or regulatory policy of the commission, as construed in Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, even if the action does not directly contravene a specific commission order.23
Yes. The commission exercised its authority under sections 451, 701, 761, 768, and related provisions to adopt a broad interim policy on powerline electric and magnetic fields.24 It did so through its 1993 decision in Electric and Magnetic Fields and its 1994 reaffirmation.25 The commission concluded after extensive study with the Department of Health Services that scientific evidence remains insufficient to establish health risks.26
It directed utilities to implement only no-cost or low-cost mitigation measures for new and upgraded facilities while leaving existing facilities unchanged.27 The Covalts filed their December 1993 action after the 1990 upgrade of the 12 kV lines on the easement adjacent to their San Clemente residence.28 They sought damages on the theory that the resulting fields rendered the property unsafe.29 This would require a trier of fact to determine that the fields present a substantial risk of harm and thereby undermine the commission's determination that no such mitigation or liability is required.30
Section 1759 bars the superior court action for property damage.31
Whether the complaint states facts sufficient to constitute causes of action for trespass, nuisance, and inverse condemnation based on increased electric and magnetic fields from upgraded powerlines?32
Trespass requires a tangible physical invasion causing actual damage to the property itself under Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229.33 Private nuisance requires proof of substantial and unreasonable interference with use and enjoyment judged by an objective standard.34 Inverse condemnation requires a direct, substantial, and peculiar burden on the property that constitutes a taking or damaging under Varjabedian v. City of Madera (1977) 20 Cal.3d 285.35
No. The electric and magnetic fields at issue are intangible non-ionizing phenomena.36 The Covalts do not allege that the fields caused any physical damage to their residence or land.37 This defeats the trespass claim under the Wilson rule that noise, odor, or similar intrusions without particulate deposit or structural harm do not support trespass.38 The nuisance and inverse condemnation counts rest solely on the Covalts' fear that the fields from the 1990 reconfiguration would cause future personal harm.39
The reconfiguration moved portions of the circuits 2.5 to 3.5 feet closer. This allegation supplies neither the objective substantial interference needed for nuisance nor the direct and peculiar burden needed for inverse condemnation.40 Any contrary finding would conflict with the commission's policy that the evidence does not support requiring mitigation of fields from existing facilities.41
The complaint does not state facts sufficient to constitute causes of action for trespass, nuisance, or inverse condemnation.42
Whether plaintiffs can state a cause of action for personal injury based on fear of future cancer from exposure to powerline electric and magnetic fields?43
Damages for fear of cancer require pleading and proof that the plaintiff was exposed to a toxic substance threatening cancer.44 The fear must stem from knowledge corroborated by reliable medical or scientific opinion that it is more likely than not the plaintiff will develop cancer, as set forth in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965.45
No. The Covalts' five personal-injury counts allege only emotional distress arising from fear of future cancer.46 They make no allegation that reliable medical or scientific opinion corroborates the probability of developing the disease from the fields.47 The Covalts have expressly abandoned any assertion that the fields are in fact a scientifically proven health hazard.48 This leaves the complaint unable to satisfy the second prong of the Potter test.49
Plaintiffs cannot state a cause of action for personal injury based on fear of future cancer.50