4. Standard of Review and Burden of Proof
In this Commission investigation, the Commission's Consumer Protection and Safety Division (CPSD) has the burden of establishing by a preponderance of the evidence that TracFone has committed the alleged violations. CPSD does not have the burden to refute defenses as the respondent assumes the burden of proof as to its defenses.7 This is the usual practice in Commission adjudicatory proceedings, including investigations.8 In applying the burden of proof to the parties in this proceeding, we consider the circumstances associated with affirmative defenses and the rule that, except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.9 CPSD also filed a motion for summary adjudication.10 We review CPSD's motion for summary adjudication under a higher standard of review. A motion for summary adjudication essentially requires the Commission to determine whether the party bringing the motion prevails based solely on undisputed facts and on matters of law. The Commission treats such motions as a court would treat motions for summary judgment or summary adjudication in civil practice.11
7 Utility Consumers' Action Network v SBC Communications, Inc. dba SBC Pacific Bell Telephone Company, 2008 Cal. PUC LEXIS 302 *9, citing to Evidence Code § 500 and &_butType=3&_butStat=2&_butNum=4&_butInline=1&_butinfo=&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzV-zSkAb&_md5=8005900b4438295dccb055427fb55e43" target="_top">City of Brentwood v. Central Valley Regional Water Quality Control Bd., 123 Cal. App. 4th 714, 725 (1st Dist. 2004) (when charged with wastewater permit violations, alleged polluter has burden of proving that statutory exceptions are available).
8 Investigation on the Commission's owe motion into the operations, practices, and conduct of Qwest Communications Corporation, Decision (D.) 03-01-087 at 8-9; Investigation on the Commission's own motion into the operations, practices and conduct of the Communication Telesystems International, D.97-05-089, 1997 Cal. PUC LEXIS 447 *66-67.
9 Evidence Code § 500.
10 CPSD's motion for summary adjudication was originally filed on September 17, 2010 and amended to include additional citations on September 28, 2010. The amended document was referred to by CPSD as a brief rather than a motion. All references to CPSD's motion or brief will be to the September 28, 2010 version and referred to herein as "motion for summary adjudication."
11 State of California Department of Transportation v. Crow Winthrop Development, D.01-08-061 at 7.
