3. Discussion

SCE's Rule 172 authorizes SCE to retroactively re-bill Andrade for uncollected charges for a number of reasons, regardless of whether SCE is at fault or not, so that SCE receives full compensation for electric service provided.

SCE's re-billing was proper under Tariff Rule 17(D), even if SCE's actions caused the error leading to the retroactive bill. Rule 17(D) defines a "Billing Error" as "an error by SCE which results in incorrect billing charges to the customer." Under Rule 17(D), "where SCE overcharges or undercharges a customer as the result of a Billing Error, SCE may render an adjusted bill for the amount of the undercharge." Andrade's complaint alleges nothing more than that SCE followed this procedure, which by the express terms of Tariff Rule 17(D) was permissible.

3.2. Tariff Rule 17(E) Also Favors SCE

Andrade asserts that because a contractor caused the crossed meters, SCE is precluded from rendering an adjusted bill to Andrade. However, SCE's re-billing was proper under Rule 17(D) regardless of whether SCE or any other party caused the error. Rule 17(E) governs the adjustment of bills for unauthorized use, which is defined as including any "intentional or unintentional use of energy whereby SCE is denied full compensation for electric service provided."

Under Rule 17(E), "where SCE determines that there has been Unauthorized Use of electric service, SCE may bill the customer for SCE's estimate of such unauthorized use . . . for the most recent three years ... ." The estimated use may be determined by accurately metered use, which in this case was measured by the other crossed meter billed to Williams Real Estate Management. (Stipulated Fact Nos. 11-14, Exhibit A hereto.) Andrade admits that it received energy from SCE, but did not pay for it. (Stipulated Fact Nos. 13-14.) Whether or not Andrade received the unbilled energy through intentional or unintentional conduct, SCE may properly collect the unbilled amount under Rule 17(E) because SCE has not received full compensation for electric service provided to Andrade.3

Providing a catchall, Rule 17(F) provides, "any billing adjustment not specifically covered in the tariffs for an undercharge or overcharge shall not exceed three years." Consequently, even if the error in billing does not fit squarely within Rule 17(D) or Rule 17(E), SCE is also authorized to re-bill Andrade under Rule 17(F) to obtain full compensation for the energy provided to Andrade. The Rule does not preclude recovery if SCE or another party is negligent.

Rule 17 authorizes SCE to receive full compensation for electric service provided even if SCE or a third party were negligent. In Re Retroactive Billing, the Commission stated that its "only concern is that a customer who has received energy should pay what the applicable tariffs prescribe for that energy." Questions concerning "guilt, innocence, or intent" (i.e., responsibility for the error) are irrelevant.4

In applying Rule 17 here, the Commission need only determine whether SCE has re-billed Andrade for payment of energy that Andrade used, but for which Andrade did not pay, and both facts are present here. Accordingly, Rule 17 establishes as a matter of law that SCE's re-billing to collect the unpaid charges from Andrade was proper.

Andrade claims SCE is guilty of "active negligence" and that SCE cannot therefore be excused from liability, citing Caza Drilling v. Teg Oil & Gas U.S.A., Inc., 142 Cal. App. 4th 453 (2006). However, the passive negligence/active negligence distinction is irrelevant here; whether something is active or passive negligence only matters when a plaintiff claims a defendant had a duty to rescue or act as a Good Samaritan. See, e.g., Minch v. Calif. Hwy Patrol, 140 Cal. App. 4th 895 (2006).

This is a case of ordinary negligence, and no one disputes there was a duty of care. The issue is whether Rule 17 requires Andrade to pay for electricity it used, regardless of whether SCE breached that duty, and we so find here.

Andrade claims incorrectly that SCE is guilty of gross negligence, and states that a party may not limit its liability for acts rising to this level. However, all we have here is a simple error in marking electric meters, not a "want of even scant care" or "extreme departure from the ordinary standard of conduct" the courts require for a finding of gross negligence.

Utility tariffs become the contract for service between the utility and the customer.5 Rule 17, a contract between SCE and Andrade, expressly provides that SCE can retroactively bill for a time-period covering three years. These contractual terms are binding upon Andrade as a matter of law, and Andrade cannot object to them.

We reject Andrade's claim that its debt should be forgiven because the three-year limitations period is too long to allow Andrade to pass the costs on to its customers. If we were to deny a utility payment every time the payment obligation lasted the full three-year statute of limitations period, we would be undermining the limitations period. Since other ratepayers must pay for any amount SCE cannot recover here, it is unfair to excuse Andrade from payment for the full three-year period simply based on an allegation that it cannot now pass along the cost to clients.

In addition, SCE's Rule 17 three-year limitations period for retroactive billing is consistent with and derivative of California statutory law concerning the collection of a utility bill. In Re Retroactive Billing (supra), the Commission considered the appropriate length of a limitations period for retroactive billing. In adopting a three-year limitations period under Rule 17, the Commission noted that there are several statutes that provide a three-year limitations period in analogous billing-dispute situations. Section 736, for example, sets a limitation of three years for a customer to file any action to recover overcharges. Section 737 sets a three-year limitations period for a utility to file an action "for the collection of lawful tariff charges." Andrade's assertion that Rule 17 violates public policy is incorrect. Rule 17 is entirely consistent with, and indeed, derivative of California public policy, as provided in Pub. Util. Code ยงยง 736 and 737.

2 SCE's Rule 17 Tariff is attached hereto and admitted into the record of this proceeding as Exhibit B.

3 See Brixey v. SCE, D.93-05-004, 49 CPUC 2d 159 (1993) (providing that a utility can retroactively recover for energy used, but not paid for, by a customer).

4 See Re Retroactive Billing by Gas and Electric Utilities to Correct Alleged Meter Underbillings Due to Meter Error and Meter Fraud (Re Retroactive Billing), D.86-06-035, 21 CPUC 2d 270 (1986) (adopting uniform rules for all gas and electric utilities concerning retroactive billing).

5 See Waters v. Pacific Telephone Company, 12 Cal. 3d 1 (1974) (tariff schedules become the contract between the utility and its customers).

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