3. Discussion
We deny the relief requested because Bee Sweet has not sustained its burden of proof. The standard was succinctly reviewed in Sargent Fletcher Inc. v. Able Corp. (2003) 110 CA 4th 1658, 1667.
The terms burden of proof and burden of persuasion are synonymous. (1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof, § 3, p. 157; 2 McCormick, Evidence, supra, Burden of Proof, § 336, p. 409.) Because the California usage is "burden of proof," we use that term here.
"Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, § 500.) To prevail, the party bearing the burden of proof on the issue must present evidence sufficient to establish in the mind of the trier of fact or the court a requisite degree of belief (commonly proof by a preponderance of the evidence). (Evid. Code §§ 115, 520.) The burden of proof does not shift during trial - it remains with the party who originally bears it. (Evid. Code, § 500; Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 346 [13 Cal.Rptr.2d 819]; Smith v. Santa Rosa Police Dept. (2002) 97 Cal.App.4th 546, 569 [119 Cal.Rptr.2d 72]; 2 McCormick, Evidence, supra, Burden of Proof, § 336, pp. 409-410.)
Under Pub. Util. Code § 1702, a complainant must prove an alleged violation of a specific requirement contained in a statute, rule, or order of the Commission, or a tariff which has been approved by the Commission. The standard of proof is by a preponderance of the evidence. (See, e.g., D.97-05-089, 72 CPUC2d 621, 633-634. "It is well settled that the standard of proof in Commission investigation proceedings is by a preponderance of the evidence.")
In this case Bee Sweet has the burden to show that SCE was at fault and that that fault caused electricity to flow through Bee Sweet's meter during on-peak time. We are not persuaded.
Bee Sweet's witnesses' testimony is mere speculation. They testified that a large industrial user near Bee Sweet might have caused line abnormalities. SCE testified the user was on a different circuit which had no bearing on Bee Sweet's service. Bee Sweet asserts that line fluctuations may have caused the problem. SCE records showed that two minor outages occurred in 2004 long before and long after either could have affected Bee Sweet's summer operations. Bee Sweet asserts that the TMLC equipment connected to SCE's line in 2005 did not operate properly. Bee Sweet had on-peak problems in 2004, before the TMLC units were installed and had similar problems after they were installed. Finally, SCE disputed whether the Alex-Tronix time clocks were operating properly. Bee Sweet's witnesses said they were; SCE's witnesses said they were not. What is clear is that the time clocks were attached in 2004 prior to installation of the TMLC units, yet on-peak usage occurred. There is no persuasive evidence that electricity flowing through the meters caused the Alex-Tronix time clocks to fail. Appendix A shows the time of on-peak use. On all days which show on-peak use starting at 1:00 p.m. the pumps were operating continuously before 1:00 p.m. and failed to turn off. In the vast majority of days in 2004 and 2005 in which the on-peak schedule was applicable, the pumps did turn off prior to the on-peak period. There is no persuasive evidence that the sporadic failure to turn off the pumps prior to the on-peak schedule was the fault of SCE.
