IV. CONCLUSION
We have carefully considered all of the arguments presented by PG&E and Edison and are of the opinion that no grounds for rehearing have been demonstrated. Accordingly, we deny the applications for rehearing.
IT IS THEREFORE ORDERED that:
1. Edison's rehearing application of D.01-01-046 is denied.
2. PG&E's rehearing application D.01-01-046 is denied.
This order is effective today.
Dated July 12, 2001, at San Francisco, California.
LORETTA M. LYNCH
President
RICHARD A. BILAS
CARL W. WOOD
GEOFFREY F. BROWN
Commissioners
I will file a written dissent.
/s/ HENRY M. DUQUE
Commissioner
Commissioner Henry M. Duque, dissenting:
I dissent on both procedural and substantive grounds. I believe it was legal error for the TRO to have even issued. There was no record evidence of a threat by the utilities to deny their obligations to serve. Attachment 2, point 2, states that "there is no intent on the part of SCE to `abandon' any of its customers." Similarly, Attachment 3, point 7, states that "at this time, PG&E and SCE have indicated that they will serve as scheduling coordinators for all their non-direct access customers . . . ." Had there been evidence of such a threat, I would have supported the issuance of a TRO.
The majority decision, nonetheless, concludes that the irreparable injury standard utilized in California courts is met here. Yet injunctive relief "cannot issue in a vacuum based on the proponents' fears about something that may happen in the future. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity." Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 C.A.4th 1069, 1084.
In addition, I believe it is legal error for the Commission to have maintained the effectiveness of the TRO for seven months. The TRO expired long ago by operation of law. California Code of Civil Procedure section 527, also a standard utilized by California Courts, provides that a TRO expires in 15 days or 20 days, for good cause shown. There was also no preliminary or permanent injunction ever issued by the Commission.
For these reasons, the applicants have demonstrated legal error and rehearing should have been granted.
/s/ HENRY M. DUQUE
Henry M. Duque
Commissioner
San Francisco, California
July 12, 2001
