In D.99-11-023 in Application (A.) 99-04-010, we reviewed our standards for dismissing complaints and applications.
On a motion to dismiss a complaint, the legal standard against which the sufficiency of the complaint is measured is whether, taking the well-pleaded factual allegations of the complaint as true, the defendant is entitled to prevail as a matter of law. (e.g., MCI Telecommunications Corp. v. Pacific Bell, D.95-05-020, 59 Cal. PUC 2d 665, 1995 Cal. PUC. LEXIS 458, at *29-*30, citing Burke v. Yellow Cab Co. (1973) 76 Cal. PUC 166.) In addition, the Commission may properly take official notice of, and consider, the files and records of court and Commission proceedings in ruling on a motion to dismiss. (e.g., Upper Kern Island Water Assn. v. Kern Delta Water District, D.91-05-019, 40 Cal. PUC 2d 65, 1991 Cal. PUC LEXIS 244, at *14; City of El Monte v. San Gabriel Valley Water Co., D.87-09-065, 25 Cal. PUC 2d 393, 1987 Cal. PUC LEXIS 238.) (D.99-11-023 at 7.)
By assuming that the facts as alleged in the complaint are true for the purpose of deciding whether to grant a motion to dismiss, we assume that Complainant will be able to prove everything alleged in its complaint. We do not accept as true the ultimate facts, or conclusions, that Complainant alleges, for instance, that SDG&E has violated its tariffs. After accepting the facts as stated, the Commission examines them in the light of applicable law and policy.
Contrary to Complainant's assertions, the Commission clearly intended that virtual net metering be made available only to buildings where tenants are individually metered utility customers.5 The Commission directed the utilities to create virtual net metering tariffs to "allow for the allocation of net energy metering benefits from a single solar energy system to all meters on an individually-metered multifamily affordable housing property6 ... Virtual net metering would allow the electricity produced by the system to be net-balanced against total building electricity consumption, as if the building had a single, or virtual master meter."7 In adopting virtual net metering, the Commission specifically stated unambiguously, "indeed, VNM can only work when tenants are individually metered."8
Schedule VNM-A only applies to individually metered units. In order to take service under Schedule VNM-A, one must be a Qualified Customer that is either (a) located on the same property as the Owner's eligible customer generator and physically connected to the Same Delivery Point (as defined by Rule 16) as the Owner's eligible generator, or (b) located on the same property as the Owner's eligible customer-generator, and is physically connected to a different Service Delivery Point, where the Owner is a Multifamily Affordable Solar Housing Program Participant.9 In addition, those customers wishing to take service under VNM-A must currently receive service on a rate schedule that would be applicable to a similar customer receiving service in combination with Schedule NEM.10
The tenants at Los Robles are not Qualified Customers because they are not SDG&E customers and therefore do not currently receive service on a rate schedule like Schedule NEM. Community Housing cannot be a Qualified Customer because its master meter not only provides service to common areas and unoccupied areas (as permitted by Schedule VNM-A) but also to occupied units. Thus, SDG&E did not violate the tariff when it refused to provide service under virtual net metering to the tenants of Los Robles.
For these reasons, SDG&E's Motion to Dismiss is granted.
With respect to SDG&E's concern that the complaint is an attack on Commission decisions and orders in violation of § 1709, we agree that a complaint proceeding is not the proper forum in which to propose changes to the Commission's Virtual Net Metering policy. If Complainant seeks to alter the Commission's virtual net metering policy, Complainant must file a petition to modify D.08-10-036 and D.11-07-031.
5 D.08-10-036 at 30-31.
6 D.08-10-036 at 31.
8 Indeed, when the Commission decided to extend virtual net metering in D.11-07-031, the Commission did so only to residential, commercial, and industrial multi-tenant and multi-meter properties. Again, the Commission did not consider extending virtual net metering to master-metered buildings.
9 SDG&E Schedule VNM-A at ¶ 4.
10 SDG&E Schedule VNM-A at ¶ 4.