4. Substantial Contribution

In evaluating whether a customer made a substantial contribution to a proceeding we look at several things. First, did the ALJ or Commission adopt one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer? (See § 1802(i).) Second, if the customer's contentions or recommendations paralleled those of another party, did the customer's participation materially supplement, complement, or contribute to the presentation of the other party or to the development of a fuller record that assisted the Commission in making its decision? (See §§ 1802(i) and 1802.5.) As described in § 1802(i), the assessment of whether the customer made a substantial contribution requires the exercise of judgment.


In assessing whether the customer meets this standard, the Commission typically reviews the record, composed in part of pleadings of the customer and, in litigated matters, the hearing transcripts, and compares it to the findings, conclusions, and orders in the decision to which the customer asserts it contributed. It is then a matter of judgment as to whether the customer's presentation substantially assisted the Commission.6

Even where the Commission does not adopt any of the customer's recommendations, compensation may be awarded if, in the judgment of the Commission, the customer's participation substantially contributed to the decision or order. For example, if a customer provided a unique perspective that enriched the Commission's deliberations and the record, the Commission could find that the customer made a substantial contribution.

A complaint case where an intervenor also represents the complainant raises unique issues in the evaluation of substantial contribution.7 In its petition to intervene, GSMOL stated that it wanted to address Scoping Issues 1 and 3 (identified in the Background section, above) because it believed that "resolution of both issues will have statewide impact, beyond the dispute between the instant parties now before the Commission." It stated that the only "new issue" it wished to address, beyond those included in the scoping memo, was that this complaint case was not the forum to resolve the issue of whether costs for replacement of electric pedestals and common area trenching were not covered by the discount on a statewide basis. As noted previously, the ALJ's ruling granted intervention only regarding Scoping Issues 1 and 3 but did not revise the scoping memo to include other issues. As a result, GSMOL may be eligible to claim compensation for Scoping Issues 1 and 3, only to the extent that there is a statewide impact.

This complaint addressed whether the rents, set by Novato and charged by Hillsboro, improperly included recovery of expenditures for electric pedestals and common area trenching, among other things. This required a determination of whether the Commission had previously excluded any types of expenditures for the submetered system from the discount, specifically electric pedestals and common area trenching. These were issues for which Hambly, as the complainant, had the burden of proof. In order to meet that burden, Hambly needed to prove the following:


· The Commission had the necessary jurisdiction.


· The rent increase granted by Novato was based on a calculation that included the discount, and costs for replacement of electric pedestals and common area trenching.


· Novato's calculation resulted in higher rents, due to inclusion of the discount and costs for replacement of electric pedestals and common area trenching, than would otherwise have been the case (rent increment).


· The rent increment had the effect of increasing the rates paid by the tenants for energy in violation of § 739.5(a).

As Hambly's representative, GSMOL was obligated to do all things necessary to assure that Hambly met the burden of proof. Expenditures associated with GSMOL's efforts to meet that burden are attributable to Hambly, and not recoverable by GSMOL as intervenor compensation. For expenditures to be compensable for GSMOL, they must supplement Hambly's showing on Scoping Issues 1 and 3 by establishing the statewide impact or significance of those issues. We look to the filings in this proceeding to determine what portion, if any, of GSMOL's efforts were not required for Hambly to meet the burden of proof, and whether those efforts resulted in a substantial contribution.8

With this guidance in mind, we turn to the claimed contributions GSMOL made to the proceeding. The issues and activities GSMOL pursued varied during different time periods, so we examine GSMOL's efforts by time period.

GSMOL's efforts during this period were prior to its representation of Hambly and appear to have been related to preparation of its motion to intervene, and its subsequent decision to represent Hambly. As such, they are general expenses and will be allocated to the other time periods in proportion to the expenditures during each period, if an award is made.

This is the period leading up to the issuance of D.01-08-040. GSMOL did not provide written testimony specifying its interests as distinct from Hambly or sponsor any witnesses at hearing. Contrary to the affirmative representation that it would not merge the costs of its dual representation, GSMOL's request for compensation does not separate its costs for work on behalf of Hambly from work performed on issues of statewide importance. From its briefs, we conclude that GSMOL's statewide concern is that there are numerous submetered mobilehome parks (MHP) that are subject to rent control where the owner could seek and obtain rent increases based in part on inclusion of the discount and/or expenditures covered by the discount in the rent increase formula. In its reply

brief9, GSMOL stated that in both its opening and reply brief, it addressed only issues whose resolution may have a statewide impact on MHP tenants who reside in submetered MHPs. Therefore, we turn to the opening and reply briefs filed by GSMOL prior to D.01-08-040 to identify issues it advanced that had statewide impacts.

In its opening and reply briefs, GSMOL took the following positions:


1. The Commission has the jurisdiction to set the discount and to determine what the discount covers, and local rent control agencies do not.


2. This complaint case is not the forum to resolve the issue of whether costs for replacement of electric pedestals and trenching were not covered by the discount on a statewide basis, and therefore chargeable to tenants as rent.


3. If the Commission wishes to make a determination that electric pedestals and common area trenching are not covered by the discount, it should modify the discount or the line extension rules rather that allow the increase in rents.

The issue of jurisdiction was resolved in the scoping memo, before GSMOL intervened and, therefore, GSMOL's briefs on this topic had no impact on the outcome of the complaint. Consideration of the second issue GSMOL addressed in briefs, whether the Commission should specify what types of expenditures related to the submetered system are or are not covered by the discount, was not an issue in this proceeding, and could not be addressed on a statewide basis as a matter of law, because the affected parties (for example, other MHP owners, utilities, tenants) were not provided notice and an opportunity to be heard in this park specific complaint. Likewise, the third issue raised by GSMOL's brief was also not within the scope of this complaint because of the notice issue.

In any event, even had these issues been within the scope, GSMOL's own expert identified several local jurisdictions that excluded electric and gas expenses in calculating allowable rent increases pursuant to their MHP rent control ordinance, calling into question the accuracy of GSMOL's premise that this was a statewide problem.10 In addition, D.01-08-040 addressed only the specifics of the complaint and did not take up the statewide issues.

Because these issues of statewide significance were either resolved in the scoping memo or were beyond the scope of the complaint, GSMOL's efforts independent of its representation of Hambly in this portion of the case did not result in a substantial contribution and are not compensable. GSMOL's efforts on behalf of Hambly to meet the complainant's burden of proof are also not compensable.

WMA filed a petition for rehearing of D.01-08-040 that was denied by D.02-01-043. GSMOL and Hambly filed a joint response that addressed whether a calculation of the ordered refunds could or should be obtained by requesting Novato to recalculate the rents, or whether the Commission should oversee the calculation of the refunds. The joint response also addressed the applicability of previous Commission decisions that Hillsboro and WMA cited in their allegations of legal error. Nothing in the joint response indicates that any portion of it relates particularly to GSMOL's interests rather than Hambly's. The rehearing request and response thereto concern whether the Presiding Officer's Decision (POD) properly found that Hambly had met the burden of proof. Therefore, any costs associated with work on the joint response are properly attributable to Hambly.

Other than responding to the petition for rehearing, the only other activities necessary during this period were related to the calculation of the refunds that Hambly was to receive. Such activities would be properly billed to Hambly.

For all of the above reasons, we find that the expenditures during this period are all attributable to Hambly and not subject to reimbursement through the intervenor compensation program.

On February 11, 2002, Hillsboro and WMA filed petitions for a writ of review and for a writ of mandate that was consolidated and heard by the court. On April 1, 2003, the court issued its decision upholding the Commission's decision.

The petitions by Hillsboro and WMA addressed matters related primarily to the Commission's jurisdiction as opposed to Novato's jurisdiction, and the Commission's interpretation of § 739.5. GSMOL filed a response to the petitions. The response identifies "Robert Hambly, for Himself and, the Residents of Los Robles Mobilehome Park, and the City of Novato" as "Real Parties in Interest", and identifies the attorneys who filed it as "Attorneys for Real Parties in Interest Robert Hambly, et al." The introduction to the response states that "Real Party in Interest, Hambly, submits this brief..." The only mention of GSMOL in the response is a statement that it "intervened on behalf of Hambly." GSMOL did not file a separate response on its behalf. The only mention of GSMOL in the court's opinion is a statement that it intervened in C.00-01-017 in support of Hambly. Therefore, we find that all expenditures related to the responding to the petitions were attributable to Hambly.

Other than responding to the petitions, the only other activities necessary during this period were related to the calculation of the refunds that Hambly was to receive. Such activities would be properly billed to Hambly.

For all of the above reasons, we find that the expenditures during this period are all attributable to Hambly and not subject to reimbursement through the intervenor compensation program.

During this time period, the only remaining issues in C.00-01-017 pertained to quantification of the refunds due to Hambly and the other tenants of Los Robles Mobilehome Park. Such expenditures are attributable solely to Hambly.

On March 13, 2003, R.03-03-017 and I.03-03-018 were initiated, C.00-01-017 was consolidated with those proceedings, and D.01-08-040 was stayed. R.03-03-017 and I.03-03-018 dealt with issues related to the discount, and two issues directly related to this proceeding. The common issues with C.00-01-017 were:


· Should the Commission revise the refunds ordered in D.01-08-040?


· What mechanism should be implemented to ensure refunds, ordered in D.01-08-040, are appropriately made to MHP submetered tenants?

Subsequent to the issuance of R.03-03-017 and I.03-03-01, GSMOL attended prehearing conferences (PHCs) and a related workshop. The above issues related to this proceeding were not addressed in the PHCs or workshop. Any expenditures GSMOL may have incurred related to R.03-03-017 and I.03-03-018 are not compensable in regards to this complaint.

The only activities during this period related to C.00-01-017 were the preparation of responses to two ALJ rulings. The first, dated August 8, 2003, posed two questions as follows:


1. "Assuming that pedestals and common area facilities are found in R.03-03-017 and I.03-03-018 to not to be covered by the mobile home master meter discount, how should D.01-08-040 be changed, if at all?"


2. "Assuming D.01-08-040 is unchanged, what is the appropriate amount of the refund, and how should it be calculated?"

On September 8, 2003, a brief was filed in response to the ALJ ruling on behalf of the complainants. It was titled "Complainants Brief and Calculations Supporting their Request for Refund." It was signed "Attorney for Complainant." Nothing in this filing indicates it was for anyone other than the complainant, "Robert Hambly, for Himself and on Behalf of the Residents of Los Robles Mobilehome Park." The reply brief, filed on October 2, 2003, was titled "Complainant, Robert Hambly, et al.'s Reply Brief to Hillsboro Properties' Response to Questions One and Two." It was filed by "Attorneys for Complainant." GSMOL did not file briefs. Therefore, expenditures related to these briefs are attributable to Hambly.

An October 16, 2003 ALJ Ruling addressed the calculation of the refunds. Neither Hambly nor GSMOL responded to the ruling. However, subsequent to the ruling, the parties filed a joint motion to close the proceeding. As a result, D.04-06-007 deconsolidated this proceeding from R.03-03-017 and I.03-03-018, removed the stay of D.01-08-040, and closed C.00-01-017.

For all of the above reasons, we find that the expenditures during this period are all attributable to Hambly and not subject to reimbursement through the intervenor compensation program.

In summary, D.01-08-040 exclusively addresses the rates charged to the Los Robles tenants. GSMOL's efforts to establish issues of statewide impact did not substantially contribute to D.01-08-040. Moreover, the procedural developments after D.01-08-040 issued (appeal of the presiding officer's decision, application for rehearing, appeal in the courts) concerned specific findings vís a vís Los Robles, not issues of statewide impact. Approximately 82% of the claimed attorneys' fees were incurred after D.01-08-040 issued.

6 D.98-04-059, 79 CPUC2d, 628 at 653. 7 We note that GSMOL did not file a NOI on behalf of Hambly and does not seek compensation for representing Hambly and the other Los Robles tenants in this proceeding. After reviewing the statute and Legislative intent, the Commission previously has determined that:
[A]n individual cannot be an "intervenor" for the purpose of Article 5 of the Public Utilities Code "in a case which he has initiated and which is being prosecuted to vindicate a personal grievance or in quest of a personal remedy." (Citation omitted; footnote omitted in original.) ... [A] "complainant acting solely in an individual capacity and seeking a personal remedy is not entitled to claim compensation as an intervenor in a Commission proceeding as provided in Article 5 (§§ 1801-1808 of the Public Utilities Code." (D.98-04-059, slip op., p. 22, quoting D.95-10-050, p. 4 and Conclusion of Law 4.)
8 This complaint was initially filed by Hambly representing GSMOL Chapter 393, of which Hambly et al. are members. It was subsequently revised to exclude any reference to GSMOL at GSMOL's request. In fact, as D.01-04-040 states, GSMOL made a special appearance at the prehearing conference (PHC) to challenge complainants' right to bring an action in the Chapter's name. The PHC occurred a month and a half before GSMOL filed its intervention. 9 Briefs were filed separately for Hambly. 10 "The policies of Carson and Escondido in the treatment of gas and electricity expenses are significant because both of the cities require rent increase petitions for all rent increases. This is in contrast to most jurisdictions with mobilehome park rent ordinances which provide for annual across-the-board rent increases (usually based on the Consumer Price Index) and generally receive very few petitions for rent adjustments for individual parks (which require review of the income and expenses of the particular park.)" [Exhibit 24, Report of Kenneth Barr, J.D., Ph.D., In Rebuttal of Testimony of Michael St. John, Ph.D., pp. 4-5.]

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