Southern California Gas Co. v. City of Santa Ana

MEMORANDUM AND ORDER RE: MOTION TO DISMISS & MOTION FOR PARTIAL SUMMARY JUDGMENT

This matter is before the court on the above-titled motions. After fully considering the parties’ papers and oral argument on April 22, 2002, we rule as follows:

I. Background

In 1938, the City of Santa Ana (“Santa Ana”) adopted an ordinance granting the Southern California Gas Company (“Gas Company”) the right to construct and maintain “pipes and appurtenances” under city streets. See Santa Ana, Cal., Ordinance No. 1061 (March 21, 1938) (“1938 Franchise”) § 1(f) (defining “pipes and appurtenances” to include anything “located or to be located ... under ... the streets of the City”) & § 2 (“to lay and use pipes and appurtenances ... under ... the streets”). In exchange, the Gas Company pays Santa Ana a percentage of its gross annual receipts. Id. § 3.

The Gas Company, “where practicable and economically reasonable shall” lay pipe “by a tunnel or bore, so as not to disturb the foundation” of city streets. Id. § 9, at ¶ 2. If, on the other hand, the Gas Company performs trench work or excavations, it must do so “under a permit to be granted by the Engineer upon application therefor.” Id. If “any…