Discussion

We preface our discussion with the caveat that our analysis does not focus on whether or not the December 7, 2000 letter from Tenby to SoCalGas created a contract for service. Although the contract formation issues were raised in the lawsuit and in the applications, they are not dispositive of what the Commission needs to examine. Our focus is on whether or not the Resolution should be modified or clarified, and if so, whether the intention of the Resolution was to preclude all transfers into core subscription or core service on and after December 21, 2000.

The first issue to address before reaching the issue of whether the Commission should modify or clarify Resolution G-3304, is whether the requests of Tenby and SoCalGas amount to requests for declaratory relief or an advisory opinion. As noted in the March 7, 2002 ALJ ruling and the February 7, 2003 scoping memo and ruling, the Commission generally disfavors issuing a decision that provides declaratory relief (D.97-10-087 [76 CPUC2d 287, 325,-326]; D.97-09-058 [75 CPUC2d 624, 625]; D.91-11-045 [abstracted at 42 CPUC2d 9]), or which is advisory in nature (D.97-09-058 [75 CPUC2d 624, 625]).

Tenby's lawsuit against SoCalGas and Sempra involves, among other things, Tenby having to purchase natural gas in January 2001 due to SoCalGas' alleged breach of contract to provide Tenby with GN-10 service during that month. Although the Resolution was not mentioned in Tenby's complaint in the lawsuit, SoCalGas demurred to the complaint on the grounds that the Superior Court lacks subject matter jurisdiction over the issues raised in Tenby's civil complaint, and that the court cannot review the Resolution. (Tenby Response To March 7, 2002 Ruling, Exh. 2.)

Both Tenby and SoCalGas stipulated to stay the lawsuit until the Commission addresses their respective applications to modify or clarify the Resolution. Tenby requests that the Commission clarify or modify the Resolution to state that anyone who elected to take core subscription or core service from SoCalGas prior to the effective date of the Resolution is not barred from taking such service. SoCalGas requests an interpretation that would prevent a noncore customer who elected core subscription or core service before the effective date of the Resolution from transferring to core or core subscription service beginning on January 1, 2001.

SoCalGas contends that it is not asking the Commission to adjudicate the specific rights of any party, or to adjudicate the pending civil suit. SoCalGas states that it is "not seeking a declaratory order from the Commission, but instead is requesting modification/clarification of Resolution G-3304." (SoCalGas 3/25/02 Response, p. 2.) However, it is clear that the applications of both SoCalGas and Tenby are requesting that the Commission interpret the Resolution in a way that will affect the pending Superior Court action involving Tenby's purchase of natural gas from an entity other than SoCalGas in January 2001.¹⁰ Thus, we conclude that the applications of Tenby and SoCalGas to clarify or modify Resolution G-3304 are requests for declaratory relief.

Although the Commission generally disfavors issuing a decision in response to a request for declaratory relief or an advisory opinion, the Commission has made some exceptions. The Commission has issued decisions which provide declaratory relief or are advisory in nature when extraordinary circumstances exist, or if the matter is of widespread public interest. (D.97-09-058 [75 CPUC2d 624, 626]; D.95-01-014 [58 CPUC2d 470, 476]; D.93-08-030 [50 CPUC2d 518, 521]; D.91-11-045 [42 CPUC2d 9]; D.87-12-017 [26 CPUC2d 125, 130].)

Even if their applications are deemed to be requests for declaratory relief, SoCalGas states in its response to the March 7, 2002 ruling, and Tenby's reply of April 8, 2002 agrees, that there are legal and policy reasons for issuing a decision in response to a request for declaratory relief. Thus, the next issue we address is whether the legal and policy reasons cited by SoCalGas are sufficient to justify issuing a decision which provides declaratory relief or which is advisory in nature.

The first reason that SoCalGas cites in support of the issuance of a Commission decision clarifying or modifying the resolution is Public Utilities Code Section 1759. That code section provides in part that "[n]o court of this state, except the Supreme Court and the court of appeal ... shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties...." SoCalGas contends that this code section prevents the Superior Court from taking any action that would have the effect of overruling a Commission decision or resolution. The basis for SoCalGas' demurrer to the civil action is that the Superior Court lacks subject matter jurisdiction to interpret the Resolution, and that several court cases have prevented the trial courts from hindering or frustrating the policies of the Commission.

SoCalGas also contends that when the Superior Court examines the Resolution, it may decide that the Resolution is ambiguous. Because of the potential ambiguity, SoCalGas contends the Commission should determine the meaning of its own decisions and resolutions as a policy matter. SoCalGas states that since the Commission and the staff were directly involved with the Resolution, the Commission is in a far better position than the trial court to determine the meaning of the Resolution. If the Resolution is ambiguous, Tenby contends that a hearing should be held to properly determine the intent of the Resolution.

SoCalGas further contends that having the Commission interpret the Resolution will promote one of the purposes of the "primary jurisdiction doctrine," which is to ensure the uniform application of regulatory policy. SoCalGas also contends that the Commission should not establish the precedent of deferring to the civil court to interpret a Commission decision or resolution.

We first note that Tenby's civil action is premised on a breach of contract theory, and that Tenby is seeking damages from SoCalGas. Before the Superior Court even addresses the effect of the Resolution, it must determine if a contract for GN-10 service was formed. This issue of contract formation is certainly within the Superior Court's jurisdiction. If a contract is found to exist, the Superior Court must then determine if SoCalGas' performance of the contract should be excused because of the suspension initiated by the Resolution. At that point, the Superior Court will need to examine the language of the Resolution to determine its effect on the contract.

We are not convinced that the cases cited by SoCalGas in footnote 7 of its response to the March 7, 2002 ALJ ruling are applicable to Tenby's civil action. Those cases rely on the holding in Waters v. Pacific Telephone Company (1974) 12 Cal.3d 1, and other cases, which have held that:

"Under the Waters rule, ... an action for damages against a public utility pursuant to [Public Utilities Code] section 2106 is barred by section 1759 not only when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would `reverse, correct, or annul' that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would `hinder' or `frustrate' or `interfere with' or `obstruct' that policy." (San Diego Gas & Electric Company v. Superior Court (1996) 13 Cal.4th 893, 918.)

As mentioned above, the Superior Court must first address in this proceeding the issue of whether a contract has been formed, before it even considers the issue of how the Resolution affects the contract. This situation is distinguishable from the Waters case wherein the plaintiff sued the telephone utility because of an alleged failure of the defendants to provide adequate phone service. The California Supreme Court held in Waters that because a tariff provision limited the liability of the telephone utility, the plaintiff's action for damages, which exceeded the limitation of liability, was barred by Public Utilities Code Section 1759. Unlike the Waters case, there is no applicable statute or tariff provision which limits the amount of damages that Tenby is seeking.

It should also be apparent to the Superior Court that Public Utilities Code Section 1759 prevents the trial court from reviewing, reversing, correcting, or annulling an order or decision of the Commission. Thus, if the Superior Court concludes that a contract existed between Tenby and SoCalGas, it must look at the plain language of the Resolution to determine if the Resolution permitted or barred Tenby from receiving GN-10 service beginning on January 1, 2001. Public Utilities Code Section 1759 clearly prevents the Superior Court from looking beyond the "four corners" of the Resolution.

The primary jurisdiction doctrine "applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." (Farmers Insurance Exchange v. Superior Court (1992) 2 Cal.4th 377, 390, italics omitted.) As a result of the stipulation filed in the Superior Court action, the trial court has essentially exercised the primary jurisdiction doctrine and referred the issue of clarifying or modifying the Resolution back to us.

The issue of whether the Commission needs to clarify or modify the Resolution depends on whether extraordinary circumstances exist, or if the matter is of widespread public interest. We do not believe that either of these situations apply. First, neither Tenby nor SoCalGas have provided a compelling reason for us to clarify or modify the Resolution. Although SoCalGas warns that other noncore customers elected to take core transportation or core service before the Resolution was adopted, none of these other alleged customers have complained to the Commission about the Resolution. Thus, Tenby and SoCalGas have not demonstrated that extraordinary circumstances exist, or that clarification or modification of the Resolution is of widespread interest.

Second, before the Superior Court addresses the applicability of the Resolution, it must decide whether a contract exists between Tenby and SoCalGas. Based on the pleadings of the parties in this proceeding and in the civil action, this contract formation issue is likely be hotly contested. However, this contract formation issue does not amount to an extraordinary circumstance, and is not of widespread interest. In addition, since Tenby is seeking damages from SoCalGas, the contract formation issue and any resulting damages are best left to the civil court. As the Commission stated in D.00-10-005:

"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 court." (D.00-10-005, p. 4, citation omitted.)

And third, the Commission, through the issuance of Resolution G-3304, has already addressed the subject matter of Tenby's dispute with SoCalGas. Tenby's action against SoCalGas in Superior Court arising from the Resolution will not undermine the regulatory policy behind the Resolution.

Assuming the Superior Court concludes that a contract has been formed, only then will it need to decide if the Resolution suspended all of the contracts entered into before the effective date of the Resolution, or if the suspension only applied to those contracts entered into on or after the effective date of the Resolution. However, due to Public Utilities Code Section 1759, the Superior Court will only be able to look at the plain meaning of the Resolution.

Since the Commission has expressed a reluctance to issue a decision in response to a request for declaratory relief, and because the parties have not convinced us that extraordinary circumstances exist, or that the clarification or modification of the Resolution is of widespread interest, we decline to issue a decision clarifying or modifying the Resolution. Furthermore, since Tenby is seeking damages from SoCalGas, that is a remedy that can only be awarded by the Superior Court as provided for in Public Utilities Code Section 2106. Accordingly, the applications of Tenby and SoCalGas to clarify or modify Resolution G-3304 are denied.

The last item of discussion is Tenby's request that the Commission address Tenby's data request to SoCalGas. Since today's decision denies both applications to clarify or modify Resolution G-3304, Tenby's data request to SoCalGas is moot.