VII. Comments on Draft Decision

The draft decision (DD) of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on March 1, 2002, and reply comments were filed on March 6, 2002.

In its comments, Edison contends that the DD is in error because Edison did give District written notice on the compensated metering by way of its Rate Book, and summary judgment should not be granted because there is conflicting evidence on the subject of notice.

Neither of these arguments is persuasive. To begin, when the Commission issued D.01-02-071 denying District's motion for summary judgment and summary adjudication and granting Edison's corresponding motion as to the 1st, 2nd, 4th, and 5th causes of action, the Commission found that one triable issue of material fact remained: "did Edison properly serve AL No. 864 on District, or otherwise notice District of the availability of compensated metering?" Both Edison and District were given the chance to file briefs and reply briefs with supporting declarations, and both parties took advantage of the opportunity. Edison, therefore, had as much opportunity as possible to marshal and aggregate documentary evidence and declarations that would prove to the Commission that it met its obligation under Rule 12 to notify Edison of compensated metering.6

Edison alleged that it notified District by way of A.L. No. 864. Despite the fact that Edison had two full opportunities, both when filing the initial round of briefs and reply briefs with supporting documentation, and the second time when only the 3rd cause of action was at issue, Edison failed to meet this burden. In addition, after a thorough perusal of the briefs and the evidence, the Commission determined that Edison also did not "otherwise notice" District of the availability of compensated metering by any other means. Edison's argument that District received notice of the availability of compensated metering by way of the Edison Rate Book Holders was analyzed in detail in the DD. Nothing Edison reargued in its comments persuades the Commission to change its decision.

Edison also claims it was error to grant summary judgment in favor of District on the 3rd cause of action because there was controverted and conflicting evidence on the notice issue. In point of fact, the Commission explicitly stated in the DD that it did not rely on the conflicting declarations in making its decision because they were not material. There was ample undisputed evidence in the record to support the finding that Edison did not meet its obligation under Rule 12 to notify District of the changes in compensated metering.

Edison reiterates many other arguments in its comments that are repetitious of the arguments Edison previously presented to the Commission. Laches, billing at other District sites, and the plain language of Rule 12 were all considered at great length, and rejected by the Commission when it drafted the DD. The Commission rejects them again.

District filed comments and reply comments to the DD. In brief, District supports the DD, but did point out some non-substantive corrections: District is seeking reparations, not damages, in its complaint, so reparations replaces damages in the final decision; and in Findings of Fact 1, the Workman Avenue, Whittier reference is deleted.

Having received and considered the comments and reply, the Commission makes the referenced non-substantive changes, but is not persuaded to change its determination that District is entitled to judgment as a matter of law on the 3rd cause of action.

Findings of Fact

1. District's electric service is governed by the Electric Service Contract dated December 15, 1989, and was initially properly placed on rate schedule TOU-8.

2. Compensated metering was not available when Contract signed in December 1989.

3. Compensated billing under Special Condition No. 16 of schedule TOU-8 became available in April of 1990.

4. Edison has a duty under Tariff Rule 12 to notify its customers, who may be affected, of a new or revised rate if such rate is established after the time application is made to Edison for service.

5. Edison notified affected customers in May 1990 of the availability of compensated metering under Special Condition No. 16 of schedule TOU-8 by way of AL- 864.

6. Edison's service list for AL-864 does not include an entry for District, nor was AL-864 sent to the address for District as set forth in the Power Purchase Contract and the Facilities Agreement or the address used by Edison for billing District.

7. Edison assigned an accounts manager to District's account and despite regularly scheduled meetings to address service, metering, and billing issues, the accounts manager never advised District of the availability of compensated metering under its schedule TOU-8.

8. District inquired about its schedule TOU-8 12 kV billing rate in January 1999.

9. Once District was advised in 1999 of the availability of compensated metering under Special condition No. 16 for schedule TOU-8, District requested installation of the device.

10. Defendant Southern California Edison failed to meet its tariff Rule 12 duty to notify District of the availability of compensated metering.

11. District incurred losses due to over billing as a result of Edison's failure to notify District of the availability of compensated metering.

12. Pub. Util. Code § 736 and Edison's tariff Rule 17(c) impose a three-year statute of limitations on billing error claims, and District's claim is subject to these statutes of limitations.

Conclusions of Law

1. Complainant County Sanitation District No. 2 of Los Angeles County is entitled to judgment as a matter of law as to the 3rd cause of action.

2. Defendant Southern California Edison Company's motion for summary judgment as to the 3rd cause of action is denied.

3. Complainant County Sanitation District's recovery of reparations on the 3rd cause of action, pursuant to the three-year statute of limitations in Pub. Util. Code Section 736 and Edison's Tariff Rule 17, is limited to the time-frame from January 7, 1996, to January 7, 1999.

ORDER

IT IS ORDERED that:

1. Complainant County Sanitation District No. 2 of Los Angeles County's motion for summary judgment as to the 3rd cause of action is granted.

2. Defendant Southern California Edison Company's (Edison) motion for summary judgment as to the 3rd cause of action is denied.

3. Southern California Edison Company is ordered to review its billing records from January 7, 1996, to January 7, 1999, and refund the difference to County Sanitation District between the rate District actually paid and the amount it would have paid if the compensated metering device were in place.

4. Decision 02-03-008 is hereby vacated and this decision replaces it.

5. This proceeding is now closed.

This order is effective today.

Dated April 22, 2002, at San Francisco, California.

6 District filed its complaint on October 27, 1999. Edison has been on notice since that date that its obligations under Rule 12 were at issue.

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