USA – CALIFORNIA LAW AND PRACTICE Contributed by: Nora Sheriff, Gwenneth O’Hara, Robert Dato, Efrat Cogan, Samir Hafez and Antonio Carrejo, Buchalter
Advice Letter Process Unlike formal CPUC proceedings, the advice let - ter process does not generally allow intervening parties to introduce evidence. However, eviden - tiary hearings may be requested in a protest to an advice letter; the request for hearings must specify material disputed facts and explain why hearings are needed. Additionally, legal arguments against an advice letter are limited to the following six specific grounds: • the advice letter was not properly served or noticed; • the requested relief conflicts with a Commis - sion decision or law, or is not permitted by the Commission decision relied upon by the utility; • there are errors or omissions in the data, anal - ysis, or calculations in the advice letter; • the requested relief is being litigated in anoth - er proceeding before the Commission; • the requested relief should be the subject of an evidentiary hearing, as opposed to an advice letter request; or • the requested relief is “unjust, unreasonable or discriminatory” . Proposed Decisions and Draft Resolutions A proposed decision is supposed to be issued 90 days after the proceeding’s submission, or within 60 days in an adjudicatory proceeding. However, in practice, the time between submis - sion and service of a proposed decision may be longer. The timing of a draft Resolution depends on whether the advice letter was protested, and whether the reviewing Industry Division required additional information. Once a Proposed Decision or Resolution is issued, parties may file comments within 20
days of its service, focusing on factual, legal, or technical errors. Comments need to cite to the record or applicable law. Parties may reply to comments five days after the deadline for filing opening comments, and are supposed to only address misrepresenta - tions of law, fact, or record evidence in other parties’ comments. Preserving Legal Arguments for Appeal The comment period provides a party’s first opportunity to raise legal arguments challeng - ing a Decision or Resolution. However, a party is not required to do so at this stage to preserve an argument for appeal. Instead, legal arguments challenging a final CPUC Decision or Resolution must be raised in an Application for Rehearing. Failure to do so constitutes a waiver of the party’s right to raise the argument in a writ petition before the courts. Writ Petition Parties are barred from introducing new or addi - tional evidence when seeking judicial review of a CPUC Decision or Resolution. Likewise, par - ties are barred from raising any legal argument not set forth in Public Utilities Code Section 1757(a)(1)-(6), and not raised in the Application for Rehearing. 9.6 Initial Sifting Process Petition for Modification A claim issued to the CPUC as a petition for modification must first be timely (filed within a year) to be considered by the Commission. If not filed on a timely basis, the Commission may summarily dismiss a petition for modification. Additionally, for a petition for modification to be granted, the Commission must agree that either changed circumstances or changed policy war -
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