2009 California Public Utilities Code - Section 1701-1710 :: Article 1. Hearings

1701.  (a) All hearings, investigations, and proceedings shall be
governed by this part and by rules of practice and procedure adopted
by the commission, and in the conduct thereof the technical rules of
evidence need not be applied. No informality in any hearing,
investigation, or proceeding or in the manner of taking testimony
shall invalidate any order, decision or rule made, approved, or
confirmed by the commission.
   (b) Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to a hearing by the
commission under this code.

1701.1.  (a) The commission, consistent with due process, public
policy, and statutory requirements, shall determine whether a
proceeding requires a hearing. The commission shall determine whether
the matter requires a quasi-legislative, an adjudication, or a
ratesetting hearing. The commission's decision as to the nature of
the proceeding shall be subject to a request for rehearing within 10
days of the date of that decision. If that decision is not appealed
to the commission within that time period it shall not be
subsequently subject to judicial review. Only those parties who have
requested a rehearing within that time period shall subsequently have
standing for judicial review and that review shall only be available
at the conclusion of the proceeding. The commission shall render its
decision regarding the rehearing within 30 days. The commission
shall establish regulations regarding ex parte communication on case
categorization issues.
   (b) The commission upon initiating a hearing shall assign one or
more commissioners to oversee the case and an administrative law
judge where appropriate. The assigned commissioner shall schedule a
prehearing conference. The assigned commissioner shall prepare and
issue by order or ruling a scoping memo that describes the issues to
be considered and the applicable timetable for resolution.
   (c) (1) Quasi-legislative cases, for purposes of this article, are
cases that establish policy, including, but not limited to,
rulemakings and investigations which may establish rules affecting an
entire industry.
   (2) Adjudication cases, for purposes of this article, are
enforcement cases and complaints except those challenging the
reasonableness of any rates or charges as specified in Section 1702.
   (3) Ratesetting cases, for purposes of this article, are cases in
which rates are established for a specific company, including, but
not limited to, general rate cases, performance-based ratemaking, and
other ratesetting mechanisms.
   (4) "Ex parte communication," for purposes of this article, means
any oral or written communication between a decisionmaker and a
person with an interest in a matter before the commission concerning
substantive, but not procedural issues, that does not occur in a
public hearing, workshop, or other public proceeding, or on the
official record of the proceeding on the matter. "Person with an
interest," for purposes of this article, means any of the following:
   (A) Any applicant, an agent or an employee of the applicant, or a
person receiving consideration for representing the applicant, or a
participant in the proceeding on any matter before the commission.
   (B) Any person with a financial interest, as described in Article
1 (commencing with Section 87100) of Chapter 7 of Title 9 of the
Government Code, in a matter before the commission, or an agent or
employee of the person with a financial interest, or a person
receiving consideration for representing the person with a financial
interest.
   (C) A representative acting on behalf of any civic, environmental,
neighborhood, business, labor, trade, or similar organization who
intends to influence the decision of a commission member on a matter
before the commission.
   The commission shall by regulation adopt and publish a definition
of decisionmakers and persons for purposes of this section, along
with any requirements for written reporting of ex parte
communications and appropriate sanctions for noncompliance with any
rule proscribing ex parte communications. The regulation shall
provide that reportable communications shall be reported by the
party, whether the communication was initiated by the party or the
decisionmaker. Communications shall be reported within three working
days of the communication by filing a "Notice of Ex Parte
Communication" with the commission in accordance with the procedures
established by the commission for the service of that notice. The
notice shall include the following information:
   (i) The date, time, and location of the communication, and whether
it was oral, written, or a combination.
   (ii) The identity of the recipient and the person initiating the
communication, as well as the identity of any persons present during
the communication.
   (iii) A description of the party's, but not the decisionmaker's,
communication and its content, to which shall be attached a copy of
any written material or text used during the communication.

1701.2.  (a) If the commission pursuant to Section 1701.1 has
determined that an adjudication case requires a hearing, the
procedures prescribed by this section shall be applicable. The
assigned commissioner or the assigned administrative law judge shall
hear the case in the manner described in the scoping memo. The
scoping memo shall designate whether the assigned commissioner or the
assigned administrative law judge shall preside in the case. The
commission shall provide by regulation for peremptory challenges and
challenges for cause of the administrative law judge. Challenges for
cause shall include, but not be limited to, financial interests and
prejudice. The regulation shall provide that all parties are entitled
to one peremptory challenge of the assignment of the administrative
law judge in all cases. All parties are entitled to unlimited
peremptory challenges in any case in which the administrative law
judge has within the previous 12 months served in any capacity in an
advocacy position at the commission, been employed by a regulated
public utility, or has represented a party or has been a party of
interest in the case. The assigned commissioner or the administrative
law judge shall prepare and file a decision setting forth
recommendations, findings, and conclusions. The decision shall be
filed with the commission and served upon all parties to the action
or proceeding without undue delay, not later than 60 days after the
matter has been submitted for decision. The decision of the assigned
commissioner or the administrative law judge shall become the
decision of the commission if no further action is taken within 30
days. Any interested party may appeal the decision to the commission,
provided that the appeal is made within 30 days of the issuance of
the decision. The commission may itself initiate a review of the
proposed decision on any grounds. The commission decision shall be
based on the record developed by the assigned commissioner or the
administrative law judge. A decision different from that of the
assigned commissioner or the administrative law judge shall be
accompanied by a written explanation of each of the changes made to
the decision.
   (b) Ex parte communications shall be prohibited in adjudication
cases.
   (c) Notwithstanding any other provision of law, the commission may
meet in a closed hearing to consider the decision that is being
appealed. The vote on the appeal shall be in a public meeting and
shall be accompanied with an explanation of the appeal decision.
   (d) Adjudication cases shall be resolved within 12 months of
initiation unless the commission makes findings why that deadline
cannot be met and issues an order extending that deadline. In the
event that a rehearing of an adjudication case is granted the parties
shall have an opportunity for final oral argument.
   (e) (1) The commission may determine that the respondent lacks, or
may lack, the ability to pay potential penalties or fines or to pay
restitution that may be ordered by the commission.
   (2) If the commission determines that a respondent lacks, or may
lack, the ability to pay, the commission may order the respondent to
demonstrate, to the satisfaction of the commission, sufficient
ability to pay potential penalties, fines, or restitution that may be
ordered by the commission. The respondent shall demonstrate the
ability to pay, or make other financial arrangements satisfactory to
the commission, within seven days of the commission commencing an
adjudication case. The commission may delegate to the attorney to the
commission the determination of whether a sufficient showing has
been made by the respondent of an ability to pay.
   (3) Within seven days of the commission's determination of the
respondent's ability to pay potential penalties, fines, or
restitution, the respondent shall be entitled to an impartial review
by an administrative law judge, of the sufficiency of the showing
made by the respondent of the respondent's ability to pay. The review
by an administrative law judge of the ability of the respondent to
pay shall become part of the record of the adjudication and is
subject to the commission's consideration in its order resolving the
adjudication case. The administrative law judge may enter temporary
orders modifying any financial requirement made of the respondent
pending the review by the administrative law judge.
   (4) A respondent that is a public utility regulated under a
rate-of-return or rate-of-margin regulatory structure or that has
gross annual revenues of more than one hundred million dollars
($100,000,000) generated within California is presumed to be able to
pay potential penalties or fines or to pay restitution that may be
ordered by the commission, and, therefore, paragraphs (1) to (3),
inclusive, do not apply to that respondent.

1701.3.  (a) If the commission pursuant to Section 1701.1 has
determined that a ratesetting case requires a hearing, the procedures
prescribed by this section shall be applicable. The assigned
commissioner shall determine prior to the first hearing whether the
commissioner or the assigned administrative law judge shall be
designated as the principal hearing officer. The principal hearing
officer shall be present for more than one-half of the hearing days.
The decision of the principal hearing officer shall be the proposed
decision. An alternate decision may be issued by the assigned
commissioner or the assigned administrative law judge who is not the
principal hearing officer. The commission shall establish a procedure
for any party to request the presence of a commissioner at a
hearing. The assigned commissioner shall be present at the closing
arguments of the case. The principal hearing officer shall present
the proposed decision to the full commission in a public meeting. The
alternate decision, if any, shall also be presented to the full
commission at that public meeting. The alternate decision shall be
filed with the commission and shall be served on all parties
simultaneously with the proposed decision.
   The presentation to the full commission shall contain a record of
the number of days of the hearing, the number of days that each
commissioner was present, and whether the decision was completed on
time.
   (b) The commission shall provide by regulation for peremptory
challenges and challenges for cause of the administrative law judge.
Challenges for cause shall include, but not be limited to, financial
interests and prejudice. All parties shall be entitled to unlimited
peremptory challenges in any case in which the administrative law
judge has within the previous 12 months served in any capacity in an
advocacy position at the commission, been employed by a regulated
public utility, or has represented a party or has been a party of
interest in the case.
   (c) Ex parte communications are prohibited in ratesetting cases.
However, oral ex parte communications may be permitted at any time by
any commissioner if all interested parties are invited and given not
less than three days' notice. Written ex parte communications may be
permitted by any party provided that copies of the communication are
transmitted to all parties on the same day. If an ex parte
communication meeting is granted to any party, all other parties
shall also be granted individual ex parte meetings of a substantially
equal period of time and shall be sent a notice of that
authorization at the time that the request is granted. In no event
shall that notice be less than three days. The commission may
establish a period during which no oral or written ex parte
communications shall be permitted and may meet in closed session
during that period, which shall not in any circumstance exceed 14
days. If the commission holds the decision, it may permit ex parte
communications during the first half of the interval between the hold
date and the date that the decision is calendared for final
decision. The commission may meet in closed session for the second
half of that interval.
   (d) Any party has the right to present a final oral argument of
its case before the commission. Those requests shall be scheduled in
a timely manner. A quorum of the commission shall be present for the
final oral arguments.
   (e) The commission may, in issuing its decision, adopt, modify, or
set aside the proposed decision or any part of the decision based on
evidence in the record. The final decision of the commission shall
be issued not later than 60 days after the issuance of the proposed
decision. Under extraordinary circumstances the commission may extend
this date for a reasonable period. The 60-day period shall be
extended for 30 days if any alternate decision is proposed pursuant
to Section 311.

1701.4.  (a) If the commission pursuant to Section 1701.1 has
determined that a quasi-legislative case requires a hearing, the
procedures prescribed by this section shall be applicable. The
assigned administrative law judge shall act as an assistant to the
assigned commissioner in quasi-legislative cases. The assigned
commissioner shall be present for formal hearings. The assigned
commissioner shall prepare the proposed rule or order with the
assistance of the administrative law judge. The assigned commissioner
shall present the proposed rule or order to the full commission in a
public meeting. The report shall include the number of days of
hearing and the number of days that the commissioner was present.
   (b) Ex parte communications shall be permitted without any
restrictions.
   (c) Any party has the right to present a final oral argument of
its case before the commission. Those requests shall be scheduled in
a timely manner. A quorum of the commission shall be present for the
final oral arguments.
   (d) The commission may, in issuing its rule or order, adopt,
modify, or set aside the proposed decision or any part of the rule or
order. The final rule or order of the commission shall be issued not
later than 60 days after the issuance of the proposed rule or order.
Under extraordinary circumstances the commission may extend this
date for a reasonable period. The 60-day period shall be extended for
30 days if any alternate rule or order is proposed pursuant to
Section 311.

1701.5.  (a) Except as specified in subdivision (b), in a
ratesetting or quasi-legislative case, the commission shall resolve
the issues raised in the scoping memo within 18 months of the date
the scoping memo is issued, unless the commission makes a written
determination that the deadline cannot be met, including findings as
to the reason, and issues an order extending the deadline. No single
order may extend the deadline for more than 60 days.
   (b) Notwithstanding subdivision (a), the commission may specify in
a scoping memo a resolution date later than 18 months from the date
the scoping memo is issued, if that scoping memo includes specific
reasons for the necessity of a later date and the commissioner
assigned to the case approves the date.

1701.6.  (a) The president of the commission shall annually appear
before the appropriate policy committees of the Senate and Assembly
to report on the annual work plan access guide of the commission
required pursuant to Section 321.6.
   (b) The president of the commission shall annually appear before
the appropriate policy committees of the Senate and Assembly to
report on the annual report of the commission on the number of cases
where resolution exceeded the time periods prescribed in scoping
memos and the days that commissioners presided in hearings, pursuant
to Section 13 of Chapter 856 of the Statutes of 1996.

1702.  Complaint may be made by the commission of its own motion or
by any corporation or person, chamber of commerce, board of trade,
labor organization, or any civic, commercial, mercantile, traffic,
agricultural, or manufacturing association or organization, or any
body politic or municipal corporation, by written petition or
complaint, setting forth any act or thing done or omitted to be done
by any public utility, including any rule or charge heretofore
established or fixed by or for any public utility, in violation or
claimed to be in violation, of any provision of law or of any order
or rule of the commission. No complaint shall be entertained by the
commission, except upon its own motion, as to the reasonableness of
any rates or charges of any gas, electrical, water, or telephone
corporation, unless it is signed by the mayor or the president or
chairman of the board of trustees or a majority of the council,
commission, or other legislative body of the city or city and county
within which the alleged violation occurred, or by not less than 25
actual or prospective consumers or purchasers of such gas,
electricity, water, or telephone service.

1702.1.  (a) The commission shall entertain complaints against any
electrical, gas, water, heat, or telephone company under Sections
734, 735, and 736 when the amount of money claimed does not exceed
the jurisdictional limit of the small claims court as set forth in
subdivision (a) of Section 116.220 or Section 116.221 of the Code of
Civil Procedure. However, when the public interest so requires, the
commission or presiding officer may, at any time prior to the filing
of a decision, terminate the expedited complaint procedure and
recalendar the matter for hearing under the commission's regular
procedure.
   (b) No attorney at law shall represent any party other than
himself or herself under the expedited complaint procedure.
   (c) No pleading other than the complaint and answer is necessary.
A hearing without a reporter shall be held within 30 days after the
answer is filed.
   (d) The parties may file applications for rehearing pursuant to
Section 1731. If the commission grants an application for rehearing,
the rehearing shall be conducted under the commission's regular
hearing procedure.

1702.2.  (a) Except as provided in subdivision (b), any funds
entrusted to the commission by any person or corporation filing a
complaint against a public utility shall be deposited in trust by the
commission in the custody of the Treasurer, as specified in Section
16305.3 of the Government Code.
   (b) If the amount of the funds entrusted to the commission by a
person or corporation filing a complaint against a public utility
exceeds twenty thousand dollars ($20,000), the commission may deposit
the funds in trust in an insured account with a bank or a federal or
state savings and loan association, bearing interest at rates up to
the maximum permitted by law. The commission shall pay these funds,
together with the interest paid thereon, to the party specified in
the commission's order or decision on that complaint.

1703.  All matters upon which complaint may be founded may be joined
in one hearing, and no motion shall be entertained against a
complaint for misjoinder of causes of action or grievances or
misjoinder or nonjoinder of parties. In any review by the courts of
orders or decisions of the commission the same rule shall apply with
regard to the joinder of causes and parties as herein provided. The
commission shall not be required to dismiss any complaint because of
the absence of direct damage to the complainant.

1704.  Upon the filing of a complaint, the commission shall cause a
copy thereof to be served upon the corporation or person complained
of. Service in all hearings, investigations, and proceedings pending
before the commission may be made upon any person upon whom a summons
may be served in accordance with the provisions of the Code of Civil
Procedure, and may be made personally or by mailing in a sealed
envelope, registered, with postage prepaid. The commission shall fix
the time when and place where a hearing will be had upon the
complaint and shall serve notice thereof, not less than 10 days
before the time set for such hearing, unless the commission finds
that public necessity requires that such hearing be held at an
earlier date.

1705.  At the time fixed for any hearing before the commission or a
commissioner, or the time to which the hearing has been continued,
the complainant and the corporation or person complained of, and such
corporations or persons as the commission allows to intervene, shall
be entitled to be heard and to introduce evidence. The commission
shall issue process to enforce the attendance of all necessary
witnesses. After the conclusion of the hearing, the commission shall
make and file its order, containing its decision. Except for
decisions filed after hearings held under Section 1702.1, the
decision shall contain, separately stated, findings of fact and
conclusions of law by the commission on all issues material to the
order or decision. A copy of such order, certified under the seal of
the commission, shall be served upon the corporation or person
complained of, or his or its attorney. The order shall, of its own
force, take effect and become operative 20 days after the service
thereof except as otherwise provided by the commission, and shall
continue in force either for a period designated in it or until
changed or abrogated by the commission. If the commission believes
that an order cannot be complied with within 20 days, it may
prescribe such additional time as in its judgment is reasonably
necessary to comply with the order, and may on application and for
good cause shown, extend the time for compliance fixed in its order.
Decisions rendered in response to complaints filed and processed
pursuant to Section 1702.1 shall not be considered as precedent or
binding on the commission or the courts of this state.

1706.  A complete record of all proceedings and testimony before the
commission or any commissioner on any formal hearing shall be taken
down by a reporter appointed by the commission, and the parties shall
be entitled to be heard in person or by attorney. In case of an
action to review any order or decision of the commission, a
transcript of that testimony, together with all exhibits or copies
thereof introduced, and of the pleadings, record, and proceedings in
the cause, shall constitute the record of the commission, but if the
petitioner and the commission stipulate that certain questions alone
and a specified portion only of the evidence shall be certified to
the Supreme Court or the court of appeal for its judgment, the
stipulation and the questions and the evidence therein specified
shall constitute the record on review. The provisions of this section
shall not apply to hearings held pursuant to Section 1702.1.

1707.  Any public utility may complain on any of the grounds upon
which complaints are allowed to be filed by other parties, and the
same procedure shall be adopted and followed as in other cases,
except that the complaint may be heard ex parte by the commission or
may be served upon any parties designated by the commission.

1708.  The commission may at any time, upon notice to the parties,
and with opportunity to be heard as provided in the case of
complaints, rescind, alter, or amend any order or decision made by
it. Any order rescinding, altering, or amending a prior order or
decision shall, when served upon the parties, have the same effect as
an original order or decision.

1708.5.  (a) The commission shall permit interested persons to
petition the commission to adopt, amend, or repeal a regulation.
   (b) (1) The commission shall consider a petition and, within six
months from the date of receipt of the petition, either deny the
petition or institute a proceeding to adopt, amend, or repeal the
regulation.
   (2) The commission may extend the six month period for
consideration of a petition pursuant to paragraph (1) to allow public
review and comment pursuant to subdivision (g) of Section 311.
   (c) If the commission denies a petition, the order or resolution
of the commission shall include a statement of the reasons of the
commission for that denial.
   (d) If the commission finds that it is precluded by law from
granting a petition, the statement of reasons for denial pursuant to
subdivision (c) shall identify the relevant provisions of law.
   (e) The commission shall implement this section under the Rules of
Practice and Procedure in effect on January 1, 2000. On or before
July 1, 2001, the commission shall amend the Rules of Practice and
Procedure to provide more specific procedures for handling a petition
pursuant to this section.
   (f) Notwithstanding Section 1708, the commission may conduct any
proceeding to adopt, amend, or repeal a regulation using notice and
comment rulemaking procedures, without an evidentiary hearing, except
with respect to a regulation being amended or repealed that was
adopted after an evidentiary hearing, in which case the parties to
the original proceeding shall retain any right to an evidentiary
hearing accorded by Section 1708.

1709.  In all collateral actions or proceedings, the orders and
decisions of the commission which have become final shall be
conclusive.

1710.  No documents or records of a public utility or person or
corporation which purport to be statements of fact shall be admitted
into evidence or shall serve as any basis for the testimony of any
witness, unless the documents or records have been certified under
penalty of perjury by the person preparing or in charge of preparing
them as being true and correct. If the person preparing them is dead
or has been declared incompetent, any other person having knowledge
of such statements of fact may certify the records. If certification
pursuant to this section is not possible for any reason, the
documents or records shall not be admitted into evidence unless
admissible under the Evidence Code.
   This section shall not apply to any documents not prepared,
directly or indirectly, by, or under the supervision or direction of,
the public utility or person or corporation offering the documents
into evidence.