Preliminary Procedural Considerations

1. Presentation of Garrapata's Case

We begin our analysis by considering Garrapata's assertion that it was afforded insufficient time to present its defense. (Garrapata opening brief at 1-2; reply brief at 1.) The transcript reflects that evidentiary hearing commenced at 9 a.m. as scheduled. The ALJ reminded both parties that as previously noticed, the hearing room was available to them only until 3 p.m. that day; she then proceeded to ascertain the parties' time estimates. Layne, who served as the utility's counsel in this proceeding stated:

I plan to testify. Mrs. Layne will testify briefly. [colloquy omitted.] And I would think that I can be all done in less than - substantially less than an hour. (Tr. 4:5-12.)

When examination of Fisch, complainant's final witness, concluded at 11:45 a.m., the ALJ granted Layne's request for a lunch break until 1:15 p.m. The hearing resumed at that time and Layne commenced Garrapata's defense shortly thereafter. At no time did Garrapata move to continue the hearing and, as scheduled, the ALJ adjourned the hearing at 3 p.m. Garrapata was permitted to present its defense in the manner it chose within the timeframe it requested. Garrapata's rights have not been abridged.

2. Garrapata's Exhibits

Garrapata also argues that the ALJ erred in declining to receive in evidence five of the eight exhibits which Garrapata had marked for identification and then offered in its defense at hearing.⁶ The ALJ ruled that Layne, who testified as Garrapata's primary witness, had failed to authenticate each of the five documents.

Garrapata's opening brief argues that the ALJ erred because the documents, all found in old business files of the utility, are ancient documents and therefore, presumptively genuine. Garrapata asserts:

Counsel for the utility has spent many hours gleaning through old files to try to help the Commission understand what probably happened in 1966 when Morely Baer built the house now owned by Fisch. None of the proffered exhibits is critical but they are each like pieces of a puzzle. Taken together they show that the company was a bankrupt, nonexistent mess and it must have been Morely Baer who installed the line in 1966 and set a meter where thought [sic] it was appropriate without regard to where the legal point of service was. (Garrapata opening brief at 3.)

The exhibits in question are:

· Ex. 102--One-half page memo, dated March 16, 1967 to Dr. R. Wesley Wright from Dr. H. Christian Zweng (states "I am returning the billing from ... Dewar [et al] to you ...") attached to 3 page letter, dated March 13, 1967 to Dr. R. Wesley Wright from Rodrick L. Dewar of Dewar, Romig and Curtis, Law Offices (states "[t]his letter is a progress report concerning the rather complicated affairs of Garrapata Water Company ..." and concludes "I am enclosing my statement ..."). Both appear to be original, typewritten documents. The letter recounts Garrapata's financial status following the death of Virginia Neilson, its original Secretary-Treasurer, but makes no mention of the Morely Baer property, specifically or of meters, generally.




· Ex. 104--One page document entitled "Garrapata Water Company Memorandum on Needed Work" (bottom of page marked "1 of 3"); dated March 26, 1968, name "Clayton B. Neill" typed below date (states "All water use should be metered. This will require the purchase of 15 meters ..."). Appears to be an original carbon copy of the first page of a three-page typewritten document. Makes no mention of the Morely Baer property nor indicates which properties are or are not metered.




· Ex. 105--Map entitled "Water Distribution System Garrapata Water Co, Inc.," bears notation "Neill Engineers, April 1962, revised March 1963." Photocopy of what appears to be an engineering drawing, with various handwritten annotations, of Garrapata's mains and some service lines, offered by Garrapata to corroborate Layne's testimony about the location of the northern end of the old Highway 1 main.




· Ex. 106--Map entitled "Garrapata Water Co. service area schematic," bears notation "Date 1.8.86" but does not indicate who drew the map. Photocopy. Legend includes three columns entitled "existing hookups"; "approved new hookups"; "potential hookups" and lists the Bloom parcel (which Fisch now owns) as a hookup. Map shows the service area boundary passing through the Bloom parcel.




· Ex. 107--Map entitled "Garrapata Water Company Service Area," bears notation "Drawn by J.L.B. 7/71." Photocopy. Legend distinguishes four different tracts of land marked with four different shadings: service area - filed March 1963; service area - filed Nov. 1970; requested service extension by Advice Letter 6; and area being served, but not filed.⁷

As Witkin explains, former Code Civ. Proc. § 1963 did create a statutory presumption that documents more than 30 years old were genuine. However, that statute has been superceded by Evid. Code § 643, which narrows application of the presumption to "a deed or will or other writing purporting to create, terminate, or affect an interest in real or personal property." (See Witkin, 1 California Evidence 4^th Ed, p. 1002 [Hearsay §§ 292-293].)

Ex. 105 and Ex. 106 are less than 30 years old and the other, older exhibits either do not affect interests in real property at all or do so only tangentially. While it is true that evidence in administrative hearings generally is not subject to the restrictive rules which govern admission in trials, it must be both "relevant and reliable." (See Witkin, 1 California Evidence 4^th Ed, p. 61 [Introduction § 55].) This Commission's own rule states "the technical rules of evidence ordinarily need not be applied" though "substantial rights of the parties shall be preserved." (Rule 64; see also § 1701(a), which authorizes the Commission to adopt procedural rules.)

Fisch argues that the ALJ correctly denied admission of these five exhibits because, among other things, they constitute an improper effort to impeach her testimony. Fisch is incorrect on this point, however, since Layne did not seek to introduce the exhibits during cross-examination of Fisch but rather, offered them during Garrapata's direct case as circumstantial evidence corroborative of the oral testimony of Garrapata's witnesses (himself and Mrs. Layne). We note, moreover, that Fisch's counsel had an opportunity to cross-examine Layne at the conclusion of his direct testimony, to conduct voir dire on all the exhibits Layne offered in Garrapata's defense, and to cross-examine Mrs. Layne's limited testimony.

As the ALJ indicated, Layne generally failed to establish who prepared these documents or for what purpose, but merely offered his own speculation about the evidentiary value of each one. We confirm the ALJ's determination to deny admission of Ex. 102, Ex. 104, and Ex. 106. With respect to Ex. 102, we conclude that though we might overlook authentication issues for the purposes of an administrative hearing, the document is not relevant to determination of the narrow issues before us. We have no need of circumstantial evidence of Garrapata's financial and managerial disorder in the 1960s and early 1970s since prior Commission decisions establish that reality persuasively. We reject Ex. 104 and Ex. 106 for inadequate authentication and because we lack other means of favorably assessing the credibility, purpose, and relevance of these documents. Garrapata's case is in no way prejudiced by exclusion of these documents.

We admit the Ex. 105 and Ex. 107 maps for limited evidentiary purposes, however. Commission files establish that in compliance with the CPCN decision, Garrapata filed a distribution system blueprint by Neill Engineers that resembles Ex. 105 in all respects but for the handwritten annotations. We receive Ex. 105 in evidence solely as corroboration of other evidence that Garrapata's Highway 1 main ends south of the Garrapata Creek bridge on Highway 1. Since other evidence supports the authenticity of Ex. 107, we receive it in evidence for its circumstantial, explanatory value with respect to certain aspects of Garrapata's present and former filed service area maps. As we discuss in greater detail below, while Ex. 107 is relevant to our discussion of the location of Garrapata's service area border, ultimately we conclude that Ex. 107 is not determinative of the issue.

Though we reverse the ALJ's ruling with respect to Ex. 105 and Ex. 107, we need not set aside submission and ask for another round of briefs, since other, adequate means exist to protect the rights of the parties. First, we will not strike the references to these exhibits, and the legal arguments about their evidentiary value, which one party or another has already made in its opening or reply briefs. Second, we will permit any party which concludes that the presiding officer's decision (POD) has failed to assign appropriate evidentiary weight to either or both of these exhibits to argue, in its appeal of the POD under Section 1701.2, why the Commission should make a different evaluation and to what result.