1. Background
The Complaint alleges that San Diego Gas & Electric Company (SDG&E) overcharged Complainant in the amount of $17,183.34 for electric service at 1678 Marisima Way, La Jolla, California, a residence that Complainant purchased in 2005. The Complaint asserts that SDG&E owes Complainant half of the monthly charges from May 30, 2005, through January 2011, when a new meter was installed. The Complaint further alleges that SDG&E has committed fraud and theft of money, and that SDG&E's complaint handling process is a sham designed to hinder and delay resolving complaints.
A prehearing conference (PHC) in this matter was held on August 19, 2011 (August 19 PHC). However, the Complainant failed to appear at the August 19 PHC. On August 25, 2011, Complainant sent a letter to the Administrative Law Judge (ALJ) asserting the Complainant did not receive notice of the August 19 PHC at a location where he could receive it, and requesting the PHC be rescheduled (August 25 Letter).
On August 26, 2011, SDG&E filed (1) its Answer to the Complaint and (2) a Motion for Summary Judgment. The Answer denies the allegations and states that the Complaint should be summarily dismissed because Complainant fails to show that SDG&E has violated a tariff, law, order, or rule of the Commission. The Motion for Summary Judgment argues that the Complaint should be dismissed because, according to SDG&E, there are no triable issues of material fact.
On September 8, 2011, the Complainant filed a Response opposing the Motion for Summary Judgment.1 On September 21, 2011, the ALJ granted SDG&E's request for permission to reply to the Response, and on September 22, 2011, SDG&E filed a Reply.
On September 15, 2011, the ALJ informed parties via electronic mail (e-mail) that a second PHC would be scheduled. On September 23, 2011, the Commission served notice that a telephonic PHC would be held on October 6, 2011.
On September 29, 2011, the ALJ issued a ruling denying the Motion for Summary Judgment (September 29 Ruling).2 On September 30, 2011, Complainant sent the ALJ an e-mail message with an attachment containing a cover letter requesting permission to respond to SDG&E's September 21 Reply, and a pleading entitled, "Complainant's Sur-Response to San Diego Gas and Electric Company Motion for Summary Judgment."3
On September 30, 2011, the ALJ issued an e-mail ruling (September 30 E-mail Ruling) denying Complainant's request to respond to SDG&E's September 22, 2011 Reply because the ALJ had already ruled on and denied SDG&E's Motion for Summary Judgment.4 On October 3, 2011, the ALJ issued a ruling confirming the September 30 Email Ruling.5
A second PHC in this matter was held telephonically on October 6, 2011 (October 6 PHC). However, the October 6 PHC was adjourned at Complainant's request before concluding the discussion concerning the scope of the proceeding.6
On October 7, 2011, the ALJ became aware that Complainant attempted to file a motion to compel discovery (Motion to Compel) on September 29, 2011,7 after Complainant served but did not file a "Correct Exhibit C" to the Motion to Compel (Correct Exhibit C).8
On October 11, 2011, Complainant filed a pleading entitled, "Withdrawal of Complaint", and a corrected Motion to Compel. Complainant's pleading will be treated as a motion to dismiss Complaint without prejudice (Motion to Dismiss Complaint).
The Motion to Dismiss Complaint states that Complainant withdraws the Complaint without prejudice because, among other things, (1) "It is clearly impossible for a consumer to obtain relief from the CPUC"; (2) "It is clear that the Electric Company has a free ride in the CPUC"; (3) "It is obvious to Complainant that no due process can be obtained in a State agency that is a patron of the utilities it's supposed to regulate"; (4) "This preliminary proceeding [i.e., the October 6 PHC] was so devoid of any fairness, so abusive and heavy handed, so one sided and obviously biased, Complainant sees no point in being abused any further in a place which by design and operation is a voice only of utility companies and long ago forgot that the `public' such as Complainant is who they were supposed to protect from the Utilities who overcharge them"; and (6) "Since Complainant clearly can get no justice here, and since the best place to test both the CPUC's conduct and that of SDG&E for the commission of fraud is in a court of law, Complainant withdraws his Complaint without prejudice as there is no hope for a fair and impartial judgment in a place owned by the utilities."
Complainant's Motion to Compel states that, on September 16, 2011, Complainant requested via email that SDG&E meet and confer but that SDG&E has ignored Complainant's request.9 The Motion to Compel requests that SDG&E be compelled to respond to Complainant's discovery requests.
On October 24, 2011, SDG&E filed a response to the Motion to Dismiss Complaint and a response in opposition to the Motion to Compel. SDG&E's response to the Motion to Dismiss Complaint states that SDG&E does not oppose Complainant's request to withdraw the Complaint but disagrees with certain negative assertions in the Motion to Dismiss Complaint.
According to SDG&E, the October 6 PHC transcript demonstrates that Complainant's negative assertions against the ALJ are nonsense, and that, not only was Complainant uncivilized toward the ALJ throughout the October 6 PHC in a manner unfit for an attorney such as himself, but Complainant was completely unprepared for the October 6 PHC, flouted the Rules of the Commission despite previous warnings, and unlawfully attempted to shift Complainant's burden to SDG&E.
SDG&E states that the Commission is the best-suited forum to hear Complainant's claims against SDG&E, and requests that the Complaint be dismissed without prejudice. According to SDG&E, dismissing the Complaint with prejudice at this time might allow the Complainant to re-file the Complaint in federal court without the Commission having reached the merits of Complainant's claims.
SDG&E's response to the Motion to Compel states that the Motion to Compel should be denied because the Motion to Compel is moot as a result of Complainant's concurrently-filed Motion to Dismiss Complaint. According to SDG&E, the Motion to Compel is premature because parties have not met and conferred prior to the filing of the Motion to Compel, as required by Rule 11.3(a). SDG&E asserts that it has not refused to meet and confer with Complainant but instead recommended that a meet and confer be deferred until after a PHC is held and issuance of a scoping memo identifying the issues to be considered in this proceeding.
1 The Response was accompanied by (1) a Brief in Support of Opposition to the Motion, (2) an Affidavit Contra Summary Judgment, and (3) a Separate Statement of Complainant.
2 The September 29 Ruling found that the accuracy of the meter serving 1678 Marisima Way during the period of alleged overcharging was a triable issue of fact.
3 The request and pleading were not filed with the Commission, and there is no evidence that the pleading was served on SDG&E.
4 The September 30 E-mail Ruling noted that Complainant's request and pleadings were not filed with the Commission's Docket Office or served on parties, as required by Rule 11.1(c) of the Commission's Rules of Practice and Procedure (Rules). The September 30 E-mail Ruling noted that, because the pleadings were not filed or served, they appeared to constitute a prohibited ex parte communication. The September 30 E-mail Ruling included the material attached to Complainant's September 30 e-mail request to the ALJ to ensure parties were aware of it.
5 The October 3, 2011 ruling directed Complainant to ensure that Complainant's future communications with the Commission comply with the Rules, and provided a link to the Rules.
6 During the October 6 PHC, Complainant stated his intention to withdraw the Complaint and instead file a lawsuit in federal court.
7 The Motion to Compel was not served on the service list or the ALJ. The Docket Office rejected the Motion to Compel because it contained procedural defects.
8 Correct Exhibit C was not filed, as required by Rule 11.1(c). In addition, on October 7, 2011, SDG&E informed the ALJ and Complainant via e-mail that Complainant had not served the Motion to Compel on SDG&E.
9 Exhibit C to the Motion to Compel indicates the Complainant's e-mail request to meet and confer was sent on September 22, 2011.
