8. Assignment of Proceeding
Geoffrey F. Brown is the Assigned Commissioner and Jeffrey P. O'Donnell is the assigned ALJ in this proceeding.
1. GSMOL's request for intervenor compensation did not identify which of the expenditures were attributable to GSMOL as opposed to Hambly.
2. On May 17, 2000, the assigned Commissioner issued a scoping memo that identified the following issues: (1) whether operation of Novato's rent control formula results in higher gas and electricity charges for submetered MHP tenants than the rates charged by PG&E; (2) whether Hillsboro has improperly included in its rent increase petitions any expenses for maintenance, repair or upgrade of the submeter system; and (3) whether expenses for installation, maintenance, and upgrade of electric pedestals are included within the discount.
3. GSMOL's intervention was limited to Issues 1 and 3.
4. On August 11, 2000, GSMOL filed a notice that it would be representing Hambly and that, where appropriate or necessary, separate briefs would be submitted on behalf of Hambly and GSMOL.
5. Hambly, et al. are GSMOL members.
6. On August 23, 2001, the Commission issued D.01-08-040 in favor of Hambly.
7. On September 24, 2001, WMA filed an application for rehearing of D.01-08-040 that was denied by D.02-01-043.
8. On February 11, 2002, Hillsboro and WMA filed for a writ of review, and for a writ of mandate.
9. On April 1, 2003, the court issued its opinion upholding D.01-08-040.
10. By D.04-06-007, the Commission 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.
11. In order to obtain an award of intervenor compensation, among other things, the intervenor's presentation must have made a "substantial contribution" to the proceeding, through the adoption, in whole or in part, of the intervenor's contention or recommendations by a Commission order or decision. (§§ 1802(h), 1803(a).)
12. In its petition to intervene, GSMOL stated that it wanted to address Scoping Issues one and three because it believed that "resolution of both issues will have statewide impact, beyond the dispute between the instant parties now before the Commission." It also 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.
13. The ALJ's ruling granted intervention only regarding Issues 1 and 3, and did not revise the issues listed in the scoping memo.
14. In this proceeding, the Commission had to determine whether it had previously excluded any types of expenditures for the submetered system from the discount, specifically electric pedestals and common area trenching. This was an issue for which Hambly had the burden of proof.
15. In order to meet the burden of proof, Hambly must prove: (1) the Commission has the necessary jurisdiction; (2) 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; (3) 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; and (4) the rent increment had the effect of increasing the rates paid by the tenants for energy in violation of § 739.5(a).
16. Since GSMOL represented Hambly, it was obligated to do all things necessary to assure that Hambly met the burden of proof.
17. GSMOL's expenditures to meet Hambly's burden are attributable to Hambly, and not recoverable by GSMOL as intervenor compensation.
18. For expenditures to be compensable for GSMOL, they must supplement Hambly's showing on Scoping Issues one and three by establishing a statewide impact or significance of the issue.
19. The expenditures for June 2000 through July 2000 were related to preparation of GSMOL's motion to intervene, and its decision to represent Hambly.
20. The expenditures for June 2000 through July 2000 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.
21. August 2000 through August 2001 is the period leading up to the issuance of D.01-08-040.
22. GSMOL did not provide written testimony specifying what it believed to be its interests as distinct from Hambly's.
23. In its reply brief filed prior to D.01-08-040, GSMOL stated that in both its opening and reply briefs it addressed only issues whose resolution may have a statewide impact on submetered MHP tenants.
24. In its opening and reply briefs filed prior to D.01-08-040, GSMOL took the following positions: (1) the Commission has the jurisdiction to set the discount and to determine what the discount covers, and the 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 common area trenching were not covered by the discount on a statewide basis, and therefore chargeable to tenants as rent; and (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.
25. The first issue, the issue of jurisdiction, was resolved in the scoping memo, before GSMOL intervened.
26. The second issue, whether the Commission should specify what types of expenditures related to the submetering 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 were not provided notice, and an opportunity to be heard.
27. The third issue, concerning modification of the discount or the line extension rules, is beyond the scope of this proceeding.
28. GSMOL's 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.
29. Decision 01-08-040 addressed only the specifics of the complaint, and did not take up the statewide issues.
30. Subsequent to the issuance of D.01-08-040, WMA filed a petition for rehearing of D.01-08-040 that was denied by D.02-01-043.
31. GSMOL and Hambly filed a joint response to WMA's petition that addressed whether a calculation of the ordered refunds can or should be obtained by requesting Novato to recalculate the rents, or whether the Commission should oversee the calculation of the refunds. In addition, it addressed the applicability of previous Commission decisions cited by Hillsboro, and WMA in their allegations of legal error.
32. Nothing in the joint response indicates that any portion of it relates only to GSMOL's interests rather than Hambly's.
33. The issues addressed in the joint response relate to this proceeding, concern whether the POD properly found that Hambly had met the burden of proof, and are properly attributable to Hambly.
34. Other than responding to the petition for rehearing, the only activities necessary during the period September 2001 through January 2002 were related to the calculation of the refunds that Hambly was to receive, and are attributable to Hambly.
35. On February 11, 2002, Hillsboro and WMA filed petitions for a writ of review, and for a writ of mandate that was heard by the court.
36. On April 1, 2003, the court issued its decision upholding D.01-08-040.
37. The petitions addressed matters related primarily to the Commission's jurisdiction as opposed to Novato's jurisdiction, and the Commission's interpretation of § 739.5.
38. GSMOL filed a response to the petitions that 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..."
39. The only mention of GSMOL in the response is a statement that it "intervened on behalf of Hambly."
40. GSMOL did not file a separate response on its behalf.
41. 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.
42. All expenditures related to the petitions for writ of review and writ of mandate were attributable to Hambly.
43. Other than responding to the petitions, the only activities necessary for this proceeding during the period February 2002 through April 2003 were related to the calculation of the refunds that Hambly was to receive. Such activities are attributable to Hambly.
44. From May 2003 through June 2004, the remaining issues in C.00-01-017 pertained to quantification of the refunds due to Hambly and the other tenants.
45. Expenditures related to quantification of refunds are attributable solely to Hambly.
46. On March 13, 2003, R.03-03-017 and I.03-03-018 were initiated, this proceeding was consolidated with those proceedings, and D.01-08-040 was stayed.
47. R.03-03-017 and I.03-03-018 dealt with issues related to the discount, and two issues directly related to this proceeding.
48. The issues in R.03-03-017 and I.03-03-018 related to C.00-01-017 were; (1) should the Commission revise the refunds ordered in D.01-08-040, and (2) what mechanism should be implemented to ensure refunds, ordered in D.01-08-040, are appropriately made to MHP submetered tenants?
49. Subsequent to the issuance of R.03-03-017 and I.03-03-01, GSMOL attended PHCs and a related workshop that did not address the above issues.
50. Any expenditures GSMOL may have incurred related to R.03-03-017 and I.03-03-018 are not compensable in regards to this proceeding.
51. The only activities during the period May 2003 through June 2004 related to C.00-01-017 were the preparation of responses to two ALJ rulings.
52. The ALJ ruling, 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?" and (2) "Assuming D.01-08-040 is unchanged, what is the appropriate amount of the refund, and how should it be calculated?"
53. On September 8, 2003, a brief was filed in response to the August 8, 2003 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."
54. 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."
55. GSMOL did not file briefs in response to the August 8, 2003 ALJ ruling.
56. Neither Hambly nor GSMOL responded to the October 16, 2003 ALJ ruling addressing the calculation of the refunds.
57. Subsequent to the October 16, 2003 ALJ ruling, the parties filed a joint motion to close C.00-01-017.
58. By D.04-06-007, the Commission 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.
59. Section 1802 (b)(1)(C) defines a customer as a group or organization authorized by its articles of incorporation or bylaws to represent the interests of residential customers.
60. GSMOL is an organization authorized to represent MHP tenants.
61. The MHP tenants represented by GSMOL in this proceeding are not utility customers.
62. If there is any statewide impact of this proceeding, it would pertain only to tenants of submetered MHPs who are not utility customers.
63. Section 1807 provides that "Any award made under this article shall be paid by the utility that is the subject of the...proceeding..."
64. No utility is a defendant, respondent, or party to this proceeding.
65. In D.00-01-020, the Commission set up a mechanism for payment of intervenor compensation in proceedings where the Commission establishes policy affecting an industry, or all regulated industries (generally quasi-legislative proceedings) where no specific respondent utilities were named.
1. Because the 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, leading up to D.01-08-040, did not result in a substantial contribution, and are not compensable.
2. GSMOL's efforts, leading up to D.01-08-040, on behalf of Hambly to meet Hambly's burden of proof are not compensable.
3. The expenditures during the period September 2001 through January 2002 are attributable to Hambly, and not compensable.
4. The expenditures for the period February 2002 through April 2003 are attributable to Hambly, and not compensable.
5. Expenditures related to the briefs filed on September 8, 2003, and October 2, 2003 are attributable to Hambly, and are not compensable.
6. The expenditures for the period May 2003 through June 2004 are attributable to Hambly, and not compensable.
7. There is no utility to pay intervenor compensation in this proceeding.
8. GSMOL is not a customer as defined in § 1802(b).
9. Since this proceeding is an adjudicatory complaint case, and not a policy-making proceeding, it does not meet the requirements of D.00-01-020.
10. The Commission has no means to award compensation in this proceeding if such an award were found to be otherwise appropriate.
11. The expenditures incurred by GSMOL in this proceeding are attributable to Hambly, or were outside the scope of the proceeding and, therefore, not compensable.
12. Because GSMOL's efforts in this proceeding are either attributable to Hambly, are outside the scope, or did not result in a substantial contribution, the general expenditures for June and July 2000 are not compensable.
13. GSMOL's request for intervenor compensation should be denied.
14. This decision should be made effective immediately.
IT IS ORDERED that:
1. The request of Golden State Mobilehome Owners League, Inc. for $100,916.13 in intervenor compensation for its contribution to Decision (D.) 01-08-040 and D.04-06-007 in Case 00-01-017 is denied.
2. This proceeding is closed.
This order is effective today.
Dated _________, at San Francisco, California.
Compensation Decision Summary Information
Compensation Decision: |
|
Contribution Decision(s): |
D0108040, D0406007 |
Proceeding(s): |
C0001017 |
Author: |
ALJ Vieth, ALJ O'Donnell |
Payer(s): |
None |
Intervenor Information
Intervenor |
Claim Date |
Amount Requested |
Amount Awarded |
Multiplier? |
Reason Change/Disallowance |
Golden State Mobilehome Owners League, Inc. |
7/21/04 |
$100,916.13 |
None |
No |
Failure to make substantial contribution; work performed on behalf of complainant |
Advocate Information
First Name |
Last Name |
Type |
Intervenor |
Hourly Fee Requested |
Year Hourly Fee Requested |
Hourly Fee Adopted |
Ben |
Scharf |
Attorney |
GSMOL |
$200 |
2000-2 |
None |
James |
Allen |
Attorney |
GSMOL |
$200 |
2001-04 |
None |
David |
Semelsberger |
Attorney |
GSMOL |
$200 |
2003 |
None |
Donald |
Lincoln |
Attorney |
GSMOL |
$200 |
2002-3 |
None |
Kimberly |
Harris |
Attorney |
GSMOL |
$200 |
2002-3 |
None |
Linda |
Reich |
Attorney |
GSMOL |
$200 |
2002-3 |
None |
Kenneth |
Baar |
Attorney/expert witness |
GSMOL |
$150 |
2000 |
None |
