Utility Consumers’ Action Network

187 Cal. App. 4th 668; 2010 Cal. App. LEXIS 1443 (August 17, 2010)

The Court of Appeal (Fourth District Division 1) followed the curious practice of other Appellate Courts (see Para. 20, infra) by denying a petition for a writ of review (on August 17, 2010) after first granting it (on March 16, 2010.)  That course is not permitted by Section 1758(a).  In any event, the Court essentially affirmed a Commission decision granting a CPCN to SDG&E for construction of the Sunrise Powerlink Transmission Project.  (A separate proceeding, addressing only issues raised under the Public Resources Code (CEQA) remained pending before the California Supreme Court but that court denied UCAN’s Petition for Writ of Review on February 24, 2011.)  The decision is noteworthy in a number of respects.  At the outset, the Court was critical of the parties’ scant citation of record evidence in support of points raised in their briefs.  The Court then considered, and rejected, UCAN’s claim that the Commission was bound to apply a “clear and convincing” evidentiary standard to factual issues rather than the “preponderance of evidence” customarily applied by the Commission.  (The decision did not address the “substantial evidence” standard of Section 1757(a)(4), the only evidentiary standard found in the portions of the code devoted to hearings and judicial review.)  The court also noted, in a portion of the opinion which should guide the practitioner, that none of UCAN’s eighteen specifications of error in its application for rehearing cited a specific statute the Commission allegedly violated.  Turning to more substantive issues, the Court rejected UCAN’s claims that Commission Rule 14.3 (governing comments on proposed decisions) could be construed to limit the Commission’s ability to consider representations at oral argument; the court cited the Commission’s Rule specifically providing for oral argument.  The Court held that by considering matters raised at oral argument the Commission does not contravene the requirement that the Commission act “in the manner required by law.”  Section 1757(a)(2).  Finally, the Court concluded that while it was debatable whether UCAN’s application for rehearing to the Commission properly raised UCAN’s claim regarding Section 1002.3, the court would nonetheless consider that claim but reject it.

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