Assignment of Proceeding
Geoffrey F. Brown is the Assigned Commissioner and John S. Wong is the assigned ALJ in this proceeding.
1. Resolution G-3304 was adopted by the Commission on December 21, 2000.
2. Ordering Paragraph 2 of the Resolution ordered SoCalGas "to suspend transfers of customers to core subscription service, Schedule G-CS or applicable core service schedules except for those customers where their gas service provider is no longer offering service in California."
3. Ordering Paragraph 3 of the Resolution ordered SoCalGas to file a new advice letter with tariff language that implements the provision of Ordering Paragraph 2 within seven days, and stated that the effective date of that advice letter would be December 21, 2000, subject to the Energy Division's review of the advice letter for compliance with the Resolution.
4. Tenby filed a civil lawsuit against SoCalGas in Los Angeles Superior Court on September 25, 2001.
5. The ALJ ruling of March 7, 2002 directed the parties to file a response as to why the Commission should proceed with hearings or a decision clarifying or modifying the Resolution, when that issue is central to the pending civil lawsuit.
6. Tenby and SoCalGas filed responses and replies to the March 7, 2002 ALJ ruling.
7. Tenby's lawsuit against SoCalGas and Sempra involves, among other things, Tenby's purchase of natural gas in January 2001 due to SoCalGas' alleged breach of contract to provide Tenby with GN-10 service during that month.
8. 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.
9. SoCalGas requests that the Commission interpret the Resolution to 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.
10. Since Tenby's civil action is premised on a breach of contract theory, before the Superior Court even addresses the effect of the Resolution, it must determine if a contract for GN-10 service was formed.
11. 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.
12. 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.
13. The contract formation issue does not amount to an extraordinary circumstance, and is not of widespread interest.
14. Since Tenby is seeking damages from SoCalGas, the contract formation issue and any resulting damages are best left to the Superior Court.
15. Neither Tenby nor SoCalGas have convinced us that we should clarify or modify the Resolution because extraordinary circumstances exist, or because the matter is of widespread public interest.
1. The Commission generally disfavors issuing a decision that provides declaratory relief or that is advisory in nature.
2. 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.
3. The applications of Tenby and SoCalGas to clarify or modify Resolution G-3304 are requests for declaratory relief.
4. Although the Commission generally disfavors issuing a decision in response to a request for declaratory relief or for an advisory opinion, the Commission has made some exceptions when extraordinary circumstances exist, or if the matter is of widespread public interest.
5. The issues of contract formation and damages are within the Superior Court's jurisdiction.
6. Public Utilities Code Section 1759 prevents the trial court from reviewing, reversing, correcting, or annulling an order or decision of the Commission.
7. 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.
8. The applications of Tenby and SoCalGas to clarify or modify Resolution G-3304 should be denied.
9. Since this decision denies the applications of Tenby and SoCalGas to clarify or modify the Resolution, Tenby's data request to SoCalGas is moot.
IT IS ORDERED that:
1. The applications of Southern California Gas Company and Tenby, Inc. to clarify or modify Resolution G-3304 are denied.
2. Application (A.) 01-12-042 and A.01-12-050 are closed.
This order is effective today.
Dated , at San Francisco, California.
