4. Discussion

Both parties urge speedy resolution of this matter because Fenn Farms will have a need for substantial amounts of natural gas for grain drying operations in late August or early September.

As a general rule, this Commission does not adjudicate contract disputes merely because one party is a public utility. Since the Commission has no jurisdiction to award damages, complaints alleging breach of contract are better served through the civil courts. (Penaloza v. P.T.&T. (1965) 64 CPUC 496, 497.)

Nevertheless, the Commission does adjudicate contract disputes in the exercise of its regulatory jurisdiction, particularly where utility service to the public may be affected. In such a case, jurisdiction may be deemed concurrent with that of the civil courts. (Investigation into transmission system operations (1992) 43 CPUC2d 234.)

Because this case deals in part with the need of a consumer for reliable gas service, we elect to turn to the merits of PG&E's motion to dismiss and Crystal's defense. There is no issue of material fact with respect to contract termination under Section 7.2(a), and we may decide the issue as a matter of law.

Section 7.2(a) is unambiguous. It does not depend on any facts for its application, except the contract itself and a calendar. It permits the parties to avoid interconnection disputes that can foster customer service interruptions. Where a contract provision is unambiguous, the express language governs, and no obligation can be implied that would result in the obliteration of a right expressly given under a written contract. (Third Story Music, Inc. v. Waits (1995) 46 Cal.App.4^th 1007, 1013.)

Crystal does not dispute that it was properly served with a notice of termination pursuant to Section 7.2(a) of its contract. However, it argues that the contract is one of adhesion, and that the termination provision is unconscionable.

A contract of adhesion is a standard contract that, imposed and drafted by a party of superior bargaining strength, relegates to another party only the opportunity to accept the contract or reject it. (14 Cal.Jur. 3d (Contracts) § 10.) A contract of adhesion, or a standard contract, is enforceable like any other, but it may not be enforced if it is unduly oppressive or unconscionable. (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4^th 1715.) In California, the standard for determining unconscionability is the presence of a contractual inequality that is so strong as to shock the conscience and confound the judgment of any person of common sense. (California Grocers Assn. v. Bank of America (1994) 22 Cal.App.4^th 205.)

The doctrine of unconscionability has both a procedural element and a substantive element, and both must be present before a contract will be deemed unenforceable. (Ellis v. McKinnon Broadcasting Co. (1993) 18 Cal.App.4^th 1796.) The procedural element focuses on inequality of bargaining power (oppression) and hidden terms (surprise). The substantive element refers to an overly harsh allocation of risks or costs that is not justified by the circumstances. (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758.)

While PG&E would appear to have superior bargaining power in a contract of this nature, it also is clear that Crystal had sufficient power to negotiate a 1999 amendment that worked in Crystal's favor. In seeking to terminate the agreement, PG&E relied on a contract provision (Section 7.2(a)) with which Crystal was or should have been familiar, since termination rights were the subject of the 1999 amendment. Hence, there was no element of surprise in the action taken by PG&E.

The right of termination here is mutual. ³ The requirement of 30 days' notice guards against abrupt action. While Crystal may view the provision as unfair, the provision is not overly harsh, nor can it be said that the provision shocks the conscience of any person of common sense.

Since oppression, surprise and overly harsh terms have not been shown, the termination provision of the contract is not invalid on the basis of unconscionability. It follows that Crystal's complaint fails to state a violation of law or of Commission rule or order, as required by Pub. Util. Code § 1702. The motion to dismiss for failure to state a cause of action should be, and is, granted.

Because this matter has been decided on the basis of the validity of the termination provision in the parties' contract, we choose not to address PG&E's alternative ground for dismissal, i.e., that Section 7.10.5 of the contract purports to require the parties to litigate only in state or federal courts.