4. The Facts are Undisputed that Alco is
Supplying and Billing for Water in Conformity
With Decision 11-03-005

Before addressing the substantive arguments that the Motion to Dismiss raises, it will be helpful to consider Alco's general rate case and the Commission's decision thereon, as there are factual and legal determinations that are dispositive of the issues raised in BudSco's complaint. As this Commission has made clear in CPN Pipeline Co. v. Pacific Gas and Electric Company, D.01-05-086 (May 24, 2001), such an approach is appropriate since, as a matter of law, the Commission may take judicial or official notice of court records as well as the files and records of the Commission's proceedings in ruling on a motion to dismiss. (Slip OP., 14, citing to Upper Kern Island Water Ass'n v. Kern Delta Water District, D.91-05-019, 40 Cal. PUC 2d 65, 1991 Cal. PUC LEXIS 244, at *14; and City of El Monte v. San Gabriel Valley Water Co., D.87-09-065, 25 Cal. PUC 2d 393, 1987 Cal. PUC LEXIS 238.)

In A.10-02-006, Alco filed an application for an order authorizing it to increase rates for water service and to include the Rosehart Industrial Park Water System into Alco's certificated service area.7 The Commission approved the Joint Motion to approve the settlement on March 10, 2011.8 On April 27, 2011, the Commission's Water & Sewer Advisory Branch wrote to Alco and stated, in part, that the "Commission has received and filed the utility's Advice Letter 146, to include the Rosehart Industrial Park Water System into Alco's certificated area, to charge the rates charged for the Salinas Division, and to withdraw its current tariff Schedule No. 1A, General Metered Service."9 BudSco is in the Rosehart service area and is receiving water from Alco.10 Alco has been billing BudSco for water service received in the Rosehart service territory,11 and there are no allegations that Alco is charging customers in the certificated service area at rates not authorized by the Commission.

As these facts are not in dispute, Alco is conducting its business in the Rosehart service area with BudSco in accordance with the terms of the Commission-approved Settlement Agreement. Nevertheless, we review BudSco's complaint to determine if there are any facts contained therein to overcome or dispute the undisputed facts which the Commission may judicially notice.

BudSco raises questions about the ownership of the well in an effort to convince the Commission that there is a cause of action to adjudicate. BudSco points to the PROPERTY ASSESSMENT INFORMATION SEARCH VALUE NOTICE from the Monterey County Assessor to show that the ownership of Fee Parcel 137-13-015-000 from which the water is derived is allegedly owned by Robert and Patricia Adcock. BudSco argues that this indication of ownership is potentially violative of the Commission's D.11-03-005, Ordering Paragraph 9, that "Alisal Water Corporation dba Alco Water Service must cease all commercial transactions between the utility and any member of the Adcock family." BudSco questions who are the owners of the well lot and equipment and why does the Monterey County Assessor's record "show different owners than who is benefiting financially from the owners investment?"

Yet taken either individually or collectively, BudSco's questions fail to amount to a cause of action for the following reasons: first, the facts are undisputed that in July of 1998 Alco acquired all Rosehart assets from Robert and Patricia Adcock via an executed bill of sale.12 BudSco does not suggest or allege that the Bill of Sale is in any way invalid. Second, the Commission authorized Alco to include Rosehart into its certificated territory and to supply and charge the customers for water. BudSco's own water bills document that was in fact done. Third, whatever confusion that the Monterey County Assessor's records may have caused BudSco does not rise to a claim that Alco violated any law or Commission rule, order, or statute as required by § 1702. Moreover, by citing to the County records, it appears that BudSco is asking the Commission to determine the rightful ownership of the water well that is supplying the Rosehart customers. This is something that the Commission may not do as the Commission "lacks jurisdiction to adjudicate rights in real property." (Rodriguez v. Pacific Gas and Electric Company, D.04-03-010, at 4 (March 17, 2004); see also Camp Meeker Water System, Inc. v. Public Utilities Commission, (1990) 51 Cal. 3d 845, 850 ["The commission acknowledges that it does not have jurisdiction equivalent to that of a court, to adjudicate incidents of title[.]")

BudSco's belief that D.11-03-005 banned Alco from engaging in commercial transactions with the Adcocks is not correct. D.11-03-005 referenced a restriction "on any commercial transactions in the future between Alco and all Adcock family members and family-related persons."13 As the transaction in question regarding the Rosehart well ownership occurred in July of 1998, the future transaction restriction is inapplicable.

Furthermore, in the Decision Modifying Decision 11-03-005 and Decision 11-09-040 Applying the Affiliate Transaction Rules that we recently approved at the May 10, 2012 voting meeting, the Decision clarified the earlier language regarding Alco's ability to transact business with the Adcocks:

We note that some language in D.11-09-040 might have been ambiguous as to Alco's ability to conduct commercial transactions with Adcock family members .... Such language might be interpreted to suggest that Alco is prohibited from entering into, negotiating, or even discussing any commercial transaction with an Adcock family member without first filing a Tier 3 Advice Letter. This was not the intent of D.11-09-040. (Slip OP., 3, Fn. 1.)

Instead, the Decision recommended that the Rules for Water and Sewer Utilities Regarding Affiliate transactions and the Use of Regulated Assets for Non-Tariffed Utility Services (Affiliate Transaction Rules) be used instead of the Tier 3 Advice Letter for reviewing the Adcock family transactions. (Id., 9-10.)

In its Complaint, Section (G)(4), BudSco states one of the issues for consideration is "Public Health and Safety/CPUC/LAWS in relation to fire suppression for Ag Chemical products in relation to service disconnection." As we understand the details of the complaint, BudSco maintains Ag Chemicals in a warehouse that receives water from Alco. BudSco asserts that Alco has threatened to discontinue water service, meaning that the lack of water might create a fire hazard that is in violation of Public Health and Safety Code, as well as other laws, relating to fire suppression.

But BudSco does not assert that Alco has discontinued water service. This is mere speculation on BudSco's part as to what Alco might do in the future and BudSco is asking the Commission to opine about future events and potential legal consequences. In D.03-09-027 (September 8, 2003), this Commission reiterated its policy of not issuing advisory opinions:

Like courts, we have a long-standing policy against issuing advisory opinions in the absence of a case or controversy, unless there are extraordinary circumstances presented. (See Rulemaking to Establish Rules for Enforcement of the Standards of Conduct Governing Relationships Between Energy Utilities and Their Affiliates Etc. [D.00-01-052, at 12-13 (slip op.)] (2000) ___ Cal. PUC 2d ___, 2000 Cal. PUC LEXIS 108, citing Pacific Legal Foundation v. California Coastal Com. (1982)
33 Cal. 3d 158, 170; Re Pacific Gas and Electric Company [D.00-06-002, at 3-4 (slip op.)] (2000) ___ Cal. PUC 2d ___, 2000 Cal. PUC LEXIS 278.)14

Since BudSco is still receiving water, we need not offer an advisory opinion about what would be the legal implications if Alco acts a certain way in the future.

BudSco disputes the $14.24 charge on its water bill on the grounds that is a "non-disclosed charge." But since the amount is listed on the bill, the charge cannot be non-disclosed. Instead, we take BudSco's concern to be that it wants an explanation of the charge. A request for clarification, however, does not rise to the level of Pub. Util. Code § 1702's requirement that there be an allegation of either a violation or law or a violation of a Commission rule or order.

Moreover, Alco has already explained the charge. On the bills that BudSco has attached to its complaint, there is language that "A Late Payment charge of 1.5% on unpaid balances or $1.00, whichever is greater, has been added to your total due."15 In its Motion to Dismiss, Alco performed the calculations as to how the $14.24 was determined taking the unpaid balances for September and October of 2011:

BudSco's Objection to Alco's Motion to Dismiss does not dispute either these calculations or the fact that the past due notice indicates that there will be an additional charge calculated based on the past-due amount. Instead, BudSco "asks the Commission to give it direction as to whether these charges should be explained and detailed on bills to customers."16 The Commission declines BudSco's request as it is in the form of a request for an advisory opinion which the Commission does not give. Moreover, BudSco does not allege that the manner in which Alco issues its bills or calculates late payments somehow runs afoul of Commission rules, orders, or Alco's tariff. Accordingly, BudSco's clarification request fails to meet the legal standards for setting forth a cause of action against Alco.

7 Settlement Agreement, 30.

8 D.11-03-005 at 2 and Ordering Paragraph 1.

9 Motion to Dismiss, Exhibit 9.

10 BudSco complaint at 2, paragraph F ("BudSco receives its water from a small well system operated by Alisal Water Corp DBA Alco Water [.]"); Letter dated August 26, 2011 from Noland Hamerly Etienne Hoss, attorneys for BudSco, which states in part: "I am writing on behalf of BudSco, Inc. who owns property and operates its business in the Rose Hart Industrial Park south of Salinas." (BudSco complaint attachment.)

11 See Alco Water Service bills addressed to BudSco and attached to BudSco's complaint.

12 Motion to Dismiss, Exhibit 2 (Bill of Sale).

13 D.11-03-005 at 23.

14 See also D.12-01-032 (January 12, 2012), at 150-151.

15 See Past Due Notice attached to BudSco's Complaint.

16 BudSco's Objection at 2.

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