SACRAMENTO – A man won't get his money back from having the Sacramento Municipal Utility District (SMUD) smart meter he never asked for in his home replaced by an analog meter, a state appeals court said in a recent ruling.
In its 10-page opinion issued Dec. 27, a California 3rd District Court of Appeal three-judge panel affirmed a lower court's judgment that Mark E. Graham's premise in his lawsuit that the time-based or "smart" meters should in installed only upon customer request is flawed.
"The Board resolution Graham relies upon is not susceptible to his interpretation," the opinion said. "In fact, it authorized the universal installation of smart meters. Accordingly, Graham's operative complaint does not state a cause of action, and he has not established a reasonable probability he can cure this defect with an amendment."
The decision is unpublished, which means it is not to be cited or used as precedent in future cases.
Appeal Court Justice Jonathan K. Renner wrote the opinion in which Justice Ronald B. Robie and Justice William J. Murray Jr. concurred.
Graham filed his lawsuit about three years ago in an attempt to recoup money he paid to switch from one of the city's smart electric meters to an analog meter. Graham argued the SMUD program had not been properly approved and that customers should be made aware they have the option to switch from smart meters to analog meters.
Graham's complaint "turns on" how a 2007 SMUD Board of Director's resolution to begin using the smart meters is interpreted, the background portion of the opinion said. A smart meter had already been installed in the home Graham purchased in March 2013, though the previous owner had not requested the smart meter. The following October, Graham paid SMUD $127 to replace the smart meter with an analog meter and now pays each month to opting out of having a smart meter.
The Appeals Court noted Graham admitted the SMUD Board had the authority to approve mandatory smart meter installation but he argued the smart meters should be installed only upon customer request.
"Graham's argument is based on the fact that the standard SMUD was considering required only that a customer requesting a time-based rate receive a time-based meter, and SMUD determined that standard was appropriate for its use," the opinion said. "However, the standard does not prohibit SMUD from providing a smart meter to all customers."
SMUD has complied with the standard by providing all of its customers with the smart meters, according to the opinion.
The Appeal Court justices disagreed with Graham's suggestion that the court read the board's resolution the same way he did.
"The applicable law requires that the board's acts be expressed by motion, ordinance or resolution," the opinion said. "It places no requirements on the form of resolutions, nor does it suggest that any portion of a resolution may be disregarded. Graham cites no authority to the contrary. Even if the resolution is imperfect, the critical point is it approved the installation of smart meters for all customers."