BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA ) ) ) ) ) ) ) ) ) Complainant, Defendant.

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1 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Mr. John S. Davis Complainant, vs. Southern California Edison Company (U 338-E) Defendant. ) ) ) ) ) ) ) ) ) C (Filed February 29, 2012) SOUTHERN CALIFORNIA EDISON COMPANY S (U 338-E) MOTION TO DISMISS COMPLAINT JANET S. COMBS WILLIAM SELDEEN Attorneys for SOUTHERN CALIFORNIA EDISON COMPANY 2244 Walnut Grove Avenue Post Office Box 800 Rosemead, California Telephone: (626) Facsimile: (626) william.seldeen@sce.com Dated: June 8, 2012 LIMS

2 SOUTHERN CALIFORNIA EDISON COMPANY S (U 338-E) MOTION TO DISMISS COMPLAINT TABLE OF CONTENTS Section Page I. INTRODUCTION...2 II. BACKGROUND...3 III. LEGAL STANDARD...5 IV. ARGUMENT...6 A. B. The Complaint Should Be Dismissed Under Section 1709 Because the Commission Has Issued A Final Decision On The Matter....6 The Complaint Fails To Raise Any Basis To Modify The Davis I Decision And Should Be Dismissed The Complaint Fails To Comply With Procedural Requirements For A Petition For Modification, Which Would Have Revealed That Complainant Has No Evidence That SCE Increased The Power Capacity Of His Transformer....8 Even If The Complaint s Allegations Were Supported By Evidence, They Still Would Not Justify Modifying Davis I C. The Complaint Should Be Dismissed for Failure to State a Claim for Relief The Complaint Does Not Allege Substantial Interference By An Objective Standard The Complaint Does Not Allege An Unreasonable Interference D. Mr. Davis s Delay In Seeking Removal Of The Transformer Has Prejudiced SCE And Is Therefore Barred By Laches V. CONCLUSION i -

3 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Mr. John S. Davis Complainant, vs. Southern California Edison Company (U 338-E) Defendant. ) ) ) ) ) ) ) ) ) C (Filed February 29, 2012) SOUTHERN CALIFORNIA EDISON COMPANY S (U 338-E) MOTION TO DISMISS COMPLAINT Pursuant to Rule 11.2 of the California Public Utilities Commission s ( Commission s ) Rules of Practice and Procedure, Southern California Edison Company ( SCE ) respectfully moves to dismiss the complaint filed by John S. Davis ( Complainant or Mr. Davis ) on the following grounds: (i) The Complaint is an improper collateral attack on the Commission s final and binding decision in Davis v. Southern California Edison Co. ( Davis I ) 1 ; (ii) Because the aim of the Complaint is to modify the order issued in Davis I, it is improper to seek such a modification through a separate, new formal complaint; rather, Complainant must satisfy the procedural and substantive requirements of a Petition To Modify Davis I, which he has not done; (iii) SCE s alleged conduct complied with a Commission mandate in Davis I, so the instant case fails to state a claim upon which relief can be granted; 1 D , 2010 Cal. PUC LEXIS 371 (2010). A courtesy copy of this opinion is attached as Exhibit A

4 (iv) Mr. Davis s delay in requesting relief after SCE complied with the Davis I decision caused undue prejudice to SCE. I. INTRODUCTION SCE moves to dismiss Mr. Davis s Complaint on several legal grounds that stem from the same dispositive fact: that the Commission s final decision in Davis I fully resolved the issues raised in this case and provided Mr. Davis appropriate relief. As indicated during the June 5, 2012 telephonic prehearing conference, Mr. Davis filed this complaint to address his dissatisfaction with the remedy ordered by the Commission in Davis I. The first time the Commission heard this case, Mr. Davis sought an order that the transformer be replaced with either one of two particular low-noise transformer models of his choosing. The Commission granted his request. Moreover, the Commission s inspectors have determined that SCE complied with the order in Davis I, so there is also no factual dispute that SCE fulfilled its regulatory obligations to its customer in this case. Mr. Davis now requests, for the first time, that the Commission revisit its final order, nullify the relief granted, and, instead, issue a different order to address the same perceived grievance, this time requiring SCE to relocate the transformer off his property to City property. Even if this case were properly before the Commission for the first time, such extraordinary relief would be unreasonable. But given that this case has already been before the Commission, and there are no allegations that would support a different outcome, the Commission should decline Mr. Davis s invitation to revise its decision and should instead dismiss this Complaint. Public Utilities Code section 1709 precludes Mr. Davis from re-litigating any issue that the Commission decided in Davis I. Other than SCE complying with the Commission s decision, no material facts have changed. Mr. Davis s new Complaint is based on allegations of old facts that Mr. Davis failed to raise in Davis I. To be sure, none of those allegations justify moving the transformer to city property. Mr. Davis does not even provide evidence to support - 2 -

5 his allegations a mandatory requirement in any petition for modification. Indeed, no evidence supports his chief allegation that SCE increased the power capacity of the transformer. Rather, the irrefutable evidence is that the power capacity of the replacement transformers was the same as the original transformer. 2 Mr. Davis has already had his day in court and received a fair and reasonable resolution from this Commission. There is no basis for rehearing. SCE respectfully requests that Mr. Davis s Complaint be dismissed as a matter of law, with prejudice. II. BACKGROUND Mr. Davis has lived at Rusty Fig Circle, Cerritos since D at 1. From 1975 to April 2009, SCE maintained a General Electric electrical transformer on that property serving about 20 homes. See id. at 2-3. In April 2009, Mr. Davis reported that the transformer was leaking. Id. SCE replaced the transformer twice with ones made by Howard Industries, 3 and conducted four acoustical surveys to make sure the transformer was functioning properly. See id. at 2-4. Ultimately, Mr. Davis was not satisfied with the efforts SCE took to reduce the sound levels, giving rise to the two complaints filed by Mr. Davis. The first complaint was filed on February 22, In that case, Mr. Davis alleged that the replacement transformer was a low quality, noisy transformer and requested that SCE be required to install a higher quality and quieter transformer. Compl. in Davis I, (F, H). Mr. Davis specified that the new transformer should be either an ABB Model or [a] Cooper Industries model as he believed those brands would be quieter than the transformers SCE 2 See Declaration of Mark Pearson, 3-7, attached hereto as Exhibit B. 3 According to the Commission s decision, there was conflicting testimony whether the second Howard transformer was a specially-designed, low noise transformer, or whether it was the same model Howard transformer with sound deadeners applied to the inside of its cover

6 installed. Compl. in Davis I, (H); see D at 1 ( Mr. Davis suggests either the ABB or Cooper Industries models as a replacement transformer. ). The Commission held an expedited public hearing in Davis I on March 30, D at 1. Mr. Davis had an opportunity at that time to present all relevant evidence, issues, and request any relief he thought appropriate. Mr. Davis made no attempt to question SCE s evidence that the original transformer was 75 kva. See id. The Commission decided the case in Mr. Davis s favor: Southern California Edison Company shall at no cost to Mr. Davis, replace the Howard Industries pad-mounted transformer located in his backyard at Rusty Fig Circle, Cerritos, California with a pad-mounted transformer, either an ABB or Cooper Industries low noise transformer 75kVA/120/240/12kV. D at 5. In other words, the Davis I decision required SCE to install a 75 kva transformer on Mr. Davis s property. The Commission s decision became effective and the case was closed on September 23, Id. Mr. Davis did not apply for a rehearing of the decision. SCE complied with the decision and installed a low-noise ABB transformer at no expense to Mr. Davis. On or about July 20, 2011, Mr. Davis initiated an informal complaint, requesting that the transformer be moved off of his property. On November 1, 2011, the Commission denied Mr. Davis s request and informed him that if he wanted the transformer moved off of his property, he would have to do so at his own expense. See Nov. 1, 2011 Letter from M.C. Tognotti to J. Davis. 4 The decision was based in part on the fact that SCE replaced the transformer to the brand that [Mr. Davis] requested in compliance with [Mr. Davis s] formal filing. Davis I, 2010 Cal. PUC LEXIS 371 at 5. Mr. Davis filed his second formal Complaint on February 29, Like the complaint in Davis I, this Complaint alleges that the replacement transformer is too loud. Specifically, Mr. 4 This letter is within the files and records of the Commission and may be officially noticed in ruling on a motion to dismiss. D at 9. A courtesy copy of the letter is attached as Exhibit E

7 Davis alleges that in April 2009, SCE increased the power capacity of [his] backyard transformer from 50 kva to 75 kva, which increased the nuisance noise 10 decibels from 40 db(a) to 50 db(a). Compl. in Davis II, (F). The Complaint further alleges that: Mr. Davis s backyard was designed for no more than 50 kva transformers. Id. The market value of the property has been reduced. Id. The transformer easement does not allow for any transformer noise. Id. Since 1976, SCE has installed subsurface transformers under municipal parkways in various locations in Cerritos. Id. The Compliant makes no allegation that SCE failed to comply with the Commission s decision in any way. See id. Moreover, the Complaint does not allege any new or changed material facts since that decision, does not explain why the present allegations were not raised previously, and does not provide any declarations or affidavits to support the truth of those allegations. See id. III. LEGAL STANDARD On a motion to dismiss, the Commission determines whether a complaint is sufficient as a matter of law. Everyday Energy Corp. v. San Diego Gas & Electric Co., D , 2012 Cal. PUC LEXIS 86, *9 (2012). The legal standard against which the sufficiency of the complaint is measured is whether, taking the well-pleaded factual allegations of the complaint as true, the defendant is entitled to prevail as a matter of law. Id. Although the Commission normally assumes that a complainant will be able to prove everything alleged in its complaint, it does not accept as true the ultimate facts, or conclusions, that the complainant alleges. Id. In addition, the Commission may properly take official notice of, and consider, the files and records and Commission proceedings in ruling on a motion to dismiss. Id. After accepting the facts as stated, the Commission examines them in the light of applicable law and policy. Id

8 In deciding a petition for modification, the Commission may also consider declarations or affidavits concerning allegations of new facts. See CPUC Rules of Practice and Procedure 16.4(b). In the event the Commission treats Mr. Davis s complaint as petition for modification, SCE submits the Declaration of Mr. Mark Pearson. The Commission may also accept such evidence under its broad powers to make its own investigations of fact, to initiate its own proceedings and in a large measure to control the scope and method of its inquiries. See Westcom Long Distance, Inc. v. Pacific Bell, D , 54 CPUC2d 244, 1994 Cal. PUC LEXIS 339 at *13 (finding that in the absence of a rule permitting motions for summary judgment, it was appropriate to accept evidence in ruling on a motion to dismiss). IV. ARGUMENT A. The Complaint Should Be Dismissed Under Section 1709 Because the Commission Has Issued A Final Decision On The Matter. California Public Utilities Code section 1709 states that in all collateral actions or proceedings, the orders and decisions of the Commission which have become final shall be conclusive. This statute prevents a party from making a collateral attack on a Commission decision. Anchor Lighting v. So. Cal. Edison Co., D , 2002 Cal. PUC LEXIS 1017 (2002). A collateral attack is an attempt by a litigant to invalidate a Commission order in a proceeding other than the one in which the order was rendered. Huebner v. R.R. Lewis Water Company, D , 2007 Cal. PUC LEXIS 356 at *11 (2007). Simply put, a complainant may not relitigate in this proceeding the same issues that were litigated and determined in the prior proceeding. Utterback v. Pacific Bell Teleph. Co., D , 2002 Cal. PUC LEXIS 404 (2002) (dismissing customer s complaint where similar complaint was brought by two of complainant s neighbors on the same grounds); see also Wilner & Assoc. v. Pac. Gas & Elec. Co, D at 4-5 ( [T]he proper way to challenge a Commission decision is by - 6 -

9 seeking a rehearing. ); Horsley v. Pacific Bell, D , 77 CPUC 2d 296, 1997 Cal. PUC LEXIS 1108 (1997) ( The instant complaint involves the same parties and raises the same issues adjudicated and resolved in D The doctrines of res judicata and collateral estoppel, as well as Public Utilities Code 1709, therefore bar relief. ). Section 1709 is essential to resolving disputes justly, inexpensively, and timely. See CPUC Rule of Practice and Procedure 1.2. Section 1709 prevents a party from filing a new complaint in hopes of a better outcome or to make up for his own lack of diligence. It also enables parties to carry out the Commission s mandates without fear of further litigation. See Childers vs. Cal. Water Serv. Co., D , 2007 Cal. PUC LEXIS 112, *8 n4 (2007) (noting that if collateral actions challenging an underlying decision were allowed, parties could never safely act under certificate decisions without fear of attack. ). Section 1709 protects the Commission from risking inconsistent decisions on the same facts and law, and keeps the Commission s docket clear for parties who have issues that have not yet been addressed. And by not enforcing this law, the Commission risks inviting future complaints aimed at undermining closed cases and otherwise final decisions. Section 1709 should be applied to this case. Mr. Davis s current Complaint is duplicative of the complaint filed in Both cases involved the same parties and the same issue. The Commission closed that case after allowing Mr. Davis a full opportunity to present his evidence and justifications for relief. If Davis II is allowed to proceed to a full hearing, SCE, ratepayers and the Commission will be forced to needlessly consume limited resources litigating issues already adjudicated. Because Mr. Davis is precluded from bringing a collateral action such as Davis II as a matter of law, the Commission should dismiss this Complaint. B. The Complaint Fails To Raise Any Basis To Modify The Davis I Decision And Should Be Dismissed. Any party may petition the Commission to make changes to an issued decision pursuant to Rule of Practice and Procedure However, to do so, the petitioner must comply with - 7 -

10 specific procedural and substantive requirements designed to avoid duplication of time, expense and effort. The instant Complaint does not satisfy any of these requirements, and instead asks the Commission to engage in a re-litigation of the entire matter. The Complaint s procedural and substantive failures are discussed below and underscore the need to dismiss the Complaint with prejudice. 1. The Complaint Fails To Comply With Procedural Requirements For A Petition For Modification, Which Would Have Revealed That Complainant Has No Evidence That SCE Increased The Power Capacity Of His Transformer. Unlike the comparatively lenient pleading standards for a complaint, a petition for modification requires petitioners to meet heightened pleading and evidentiary standards. This allows the Commission to dispose of the matter efficiently by focusing on the key issues and evidence. Under the Commission s rules, a petition for modification must concisely state the justification for the requested relief and must propose specific wording to carry out all the requested modifications to the decision. Rule of Practice and Procedure 16.4(b). 5 If more than one year has elapsed, as is the case here, the petition must also explain why the petition could not have been presented within one year of the effective date of the decision. Id. at 16.4(d). 6 In addition, any factual allegations must be 5 Rule 16.4(b) states, A petition for modification of a Commission decision must concisely state the justification for the requested relief and must propose specific wording to carry out all requested modifications to the decision. Any factual allegations must be supported with specific citations to the record in the proceeding or to matters that may be officially noticed. Allegations of new or changed facts must be supported by an appropriate declaration or affidavit. 6 Rule 16.4(d) states, Except as provided in this subsection, a petition for modification must be filed and served within one year of the effective date of the decision proposed to be modified. If more than one year has elapsed, the petition must also explain why the petition could not have been presented within one year of the effective date of the decision. If the Commission determines that the late submission has not been justified, it may on that ground issue a summary denial of the petition

11 supported with specific citations to the record, and any new or changed facts must be supported by an appropriate declaration or affidavit. Id. at 16.4(b). Mr. Davis has not complied with these important procedural requirements, and as a result, the Commission cannot determine in an efficient way whether any new allegations justify re-opening the closed case. For example, Mr. Davis s chief allegation is that SCE increased the power capacity of the transformer from 50 kva to 75 kva. Mr. Davis provides no evidence to support his claim, and in fact, as recently as June 2011, Mr. Davis sent correspondencee to the Commission indicating that this allegation is simply speculation. 7 In contrast to Mr. Davis s unsupported allegations, SCE transformer records indicate that the original General Electricc transformerr was 75 kva, i.e., the same as the transformer the Commission ordered SCE to install in Davis I. The image below is a screen capture of the relevant records kept in the ordinary course of business at SCE. Declaration of Mark Pearson (attached hereto as Exhibit B), 3-6; Ex. C (Transformer Inquiry Report for General Electric Transformer No. L445224T73AA). Transformer Inquiry Record for GE Transformer No. L445224T73AA 7 June 8, 2011 at 11:36 AM Mr. Davis to Hon. Chief Judge Karen Clopton (speculating that it is highly plausible that SCE increased the transformer power rating and It is possible that SCE increased the transformer power rating ) (emphasis added). This is within the files and records of the Commission and may be officially noticed in ruling on a motion to dismiss. D at 9. A courtesy copy of Mr. Davis s is attached hereto as Exhibit D

12 Had Mr. Davis followed Rule 16.4 s procedures, it would be clear that no direct evidence supports an allegation that SCE increased the power capacity of the transformer. The Commission should reject this attempt to engage in improper time- and resourceintensive fact finding just to reach the same factual conclusion the Presiding Officer reached in Davis I. 2. Even If The Complaint s Allegations Were Supported By Evidence, They Still Would Not Justify Modifying Davis I. A petition for modification should not be entertained when it is based entirely on allegations that could have been raised in the earlier proceedings. In this current Complaint, Mr. Davis raises only issues that he failed to raise in Davis I, such as (i) the alleged power capacity of the original transformer, (ii) the alleged decrease in his property value, (iii) the alleged scope of the transformer easement, or (iv) that SCE allegedly installed subsurface transformers at other locations in Cerritos since Significantly, none of these allegations introduce new or changed facts. See Rule of Practice and Procedure 16.4(b). As such, even if they were true, they do not call into question the Davis I decision. These allegations fail for another reason: They do not suggest that the Commission s original decision to install a 75 kva transformer on Mr. Davis s property was in error. For example, that SCE may have installed subsurface transformers elsewhere in Cerritos does not mean that all transformers should be moved out of backyards to underground city streets at ratepayer expense. Likewise, the allegation that SCE s easement allowing it to install the transformer on Mr. Davis s property does not explicitly refer to transformer noise 8 is irrelevant as a matter of California law because 8 This allegation lacks credibility on its face. There is no dispute that the easement allows for transformers, as well as for incidental uses. All working transformers make incidental sound; even the original General Electric Continued on the next page

13 sound waves are not a basis for trespass. See, e.g., Wilson v. Interlake Steel Co., 32 Cal. 3d 229, 232 (1982) ( Noise alone, without [physical] damage to the property, will not support a tort action for trespass. ). Even Mr. Davis s central allegation that the capacity of the transformer was increased to 75 kva does not suggest that the Davis I was incorrectly decided. In issuing its decision, the Commission intended SCE to install a 75 kva transformer. The Commission also intended for SCE to take reasonable steps to avoid unnecessary inconvenience when installing the 75 kva transformer, namely, by using a premium, low-noise transformer of Mr. Davis s choosing at no cost to Mr. Davis. The (false) allegation that the capacity of the transformer increased does not undermine the basis for that decision. C. The Complaint Should Be Dismissed for Failure to State a Claim for Relief. To withstand a motion to dismiss, a complaint must allege an act or thing done or omitted to be done by 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. Pub. Util. Code Even if all the facts alleged in the complaint were taken to be true, Mr. Davis does not allege such wrongful conduct. In this case, the only putatively wrongful conduct Mr. Davis alleges is that SCE increased the power capacity of [his] backyard transformer from 50 kva to 75 kva. However, the Davis I decision mandated SCE to install a 75 kva transformer, thus Mr. Davis alleges only conduct showing that SCE complied with the Davis I decision. Significantly, Mr. Davis does not suggest SCE did anything other than what the Commission ordered it to do, nor does he allege that the new transformer is not functioning in a manner inconsistent with its Continued from the previous page transformer which Mr. Davis alleges was audible from within a few feet. Compl., (F). Mr. Davis s interpretation would only allow non-working transformers on SCE s easements, an interpretation that would absurd consequences

14 specifications. In other words, Mr. Davis s Complaint is based on SCE s compliance with an order without any allegation that SCE violated any other order, law or rule. SCE and its customers should not bear the financial burden of appeasing Mr. Davis s be held responsible because the ABB low-noise transformer is not quiet enough for Mr. Davis. In Davis I, Mr. Davis represented to the Commission that SCE installed a low quality, noisy transformer and selected the transformer that SCE be ordered to install, even though SCE witnesses testified that SCE had already voluntarily installed a premium, low noise Howard transformer at no cost to Mr. Davis. SCE can only comply with that order, it cannot control the sound emitted by the transformer Mr. Davis selected. Because Mr. Davis does not allege any conduct by SCE that was not mandated by the Davis I decision, the Complaint should be dismissed. However, putting aside the undisputed fact that Mr. Davis created the conditions he now complains of, the Complaint fails to meet the standards for stating a cause of action for nuisance. Under California law, to state a claim for a nuisance, a complainant must allege (i) a substantial interference as judged by an objective standard (not the subjective opinion of the complainant) and (ii) the interference must be unreasonable. E.g., San Diego Gas & Elec. Co. v. Super. Ct., 13 Cal. 4th 893, (1996). As discussed below, Mr. Davis fails to allege either of these requisites. 1. The Complaint Does Not Allege Substantial Interference By An Objective Standard. Mr. Davis alleges that SCE increased sound levels from 40 db(a) to 50 db(a). Compl. (F). Assuming this allegation to be true, other than subjective opinion of Mr. Davis, there is no indication that 50 db(a) is sufficiently loud to cause a substantial interference. In fact, Mr. Davis attempts to distance himself from the significance of these objective decibel readings: The noise nuisance is unacceptable to residents regardless of technical measurements. Compl. (G). Rather, the Commission has

15 already identified the specially designed ABB transformer that SCE installed in compliance with the Davis I decision as a low-noise transformer. Davis I, 2010 Cal. PUC LEXIS 371 at 5 (Ordering Para. 1). Mr. Davis does not contend that the transformer SCE installed is not a premium, low-noise ABB transformer, or that the ABB transformer is malfunctioning; rather Mr. Davis alleges simply that the low-noise transformer he selected is not quiet enough for him. This is not sufficient to state a cause of action for nuisance. 2. The Complaint Does Not Allege An Unreasonable Interference. Mr. Davis must also allege (and submit evidence) that any interference is also unreasonable. Courts consider interference to be unreasonable when weighed against the social value of the conduct, the suitability of the conduct to the character of the locality, and whether it is practical to avoid the interference. See Rest. 2d Torts 828. Here, the allegations and undisputed facts all indicate that the transformer sound is not unreasonable. Social Value of Providing Electricity. The social value of the conduct providing safe, reliable and cost effective electrical service is extremely high. Suitability of Operating a Transformer on a Valid Easement. SCE is operating the transformer in an appropriate locality. Mr. Davis has attached to his Complaint a copy of the easement that allows SCE to operate the transformer on his property, contradicting his claim that his backyard is somehow not suited for a transformer. Mr. Davis bought the land knowing that the easement granted SCE the right to operate a transformer on the property. Impracticality of Avoiding the Sound. It is not practical to grant Mr. Davis the extraordinary relief he seeks. SCE has already taken reasonable steps to provide Mr. Davis with a quiet transformer. SCE has installed three different replacement transformers and conducted six acoustic surveys to confirm that each transformer was

16 properly working, all at no cost to Mr. Davis. The next step, according to Mr. Davis, is to move the transformer to city property. However, the construction of an underground facility is far more costly than a surface transformer and would require securing necessary permits from the city for the excavation in the municipal parkway. If the municipality has issues with the proposed location of the equipment, it may object to a transformer being placed on or under the city street. Not only is such relief impractical in this case, but it risks setting a precedent that could have costly ramifications to customers if utilities are no longer able to maintain pad-mounted transformers on backyard easements across the state. In sum, the Complaint fails to allege wrongful conduct because it alleges only actions SCE took in order to comply with the Davis I decision. Moreover, the Complaint fails to allege that the consequences of a 50 db(a) sound is significant by any objective standard, or that any interference is unreasonable. The Complaint should, therefore, be dismissed. D. Mr. Davis s Delay In Seeking Removal Of The Transformer Has Prejudiced SCE And Is Therefore Barred By Laches. The doctrine of laches bars a claim where a party unreasonably delays the assertion of a right resulting in substantial prejudice to another party. Pac. Bell Teleph. Co. v. Fones4All Corp., D , 2007 Cal. PUC LEXIS 314, (2007). The party asserting a laches defense must demonstrate that the complainant had actual knowledge of facts or failed to acquire such knowledge after receiving notice. County Sanitation Dist. No. 2 of Los Angeles County v. So. Cal. Edison Co., D , 2002 Cal. PUC LEXIS 547, (2002). Mr. Davis delayed nearly three years from the date he filed his complaint to assert an alleged right to move the transformer onto city property. This delay is unreasonable because Mr. Davis either knew all along, or he waited until after SCE complied with the Commission s decision before acquiring the facts that he now alleges in his Complaint. In either case, such actions, while convenient for

17 Mr. Davis, show a disregard for the costs incurred by ratepayers. Even if Mr. Davis originally had a right to have the transformer moved, he lost that right by not asserting it timely. Other ratepayers should not have to pay for Mr. Davis s lack of diligence. V. CONCLUSION Mr. Davis has received full adjudication of the issues presented here. For the above stated reasons, SCE respectfully requests that the Commission decline Mr. Davis s invitation to start this case from scratch and instead issue an order summarily dismissing Mr. Davis s Complaint with prejudice. Respectfully submitted, JANET S. COMBS WILLIAM SELDEEN /s/ William Seldeen By: William Seldeen Attorneys for SOUTHERN CALIFORNIA EDISON COMPANY 2244 Walnut Grove Avenue Post Office Box 800 Rosemead, California Telephone: (626) Facsimile: (626) william.seldeen@sce.com June 8,

18 Exhibit A Decision Granting Relief in Davis v. Southern California Edison Company, D (September 23, 2010)

19 ALJ/RAB/gd2 Date of Issuance 9/27/2010 Decision September 23, 2010 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA John S. Davis, vs. Complainant, Southern California Edison Company, (ECP) Case (Filed February 22, 2010) Defendant. John S. Davis for himself, Complainant. Amy Liu for Defendant. DECISION GRANTING RELIEF Complainant, John S. Davis, seeks to have Southern California Edison Company (SCE) replace the noisy pad-mounted transformer recently installed in his backyard with a quieter unit. Mr. Davis suggests either the ABB or Cooper Industries models as a replacement transformer. SCE refuses to comply, stating that the current transformer meets all noise standards. Public hearing was held March 30, We hold in favor of Complainant and order SCE to replace the noisy pad-mounted transformer with a quieter one, at no cost to Complainant. Mr. Davis testified that SCE s recently installed pad-mounted transformer causes noise inside his house. SCE installed the pad-mounted transformer 13 feet from the wall of his bedroom. The noise can be heard as a hum from his A1

20 C ALJ/RAB/gd2 bed, in his bedroom closet, in two other bedrooms, and down the hall. There were no complaints or problems from 1976 until early 2009 during which time SCE had provided a GE pad-mounted transformer. When the GE transformer began to leak in April 2009, SCE installed a low quality, noisy transformer. Mr. Davis requests that SCE be ordered to install a higher quality and quieter transformer, possibly an ABB model or a Cooper Industries model. The noisy transformer that SCE installed was made by Howard Industries. Mr. Davis testified that his family has lived at Rusty Fig Circle, Cerritos, since He said he and his wife lived with a pad-mounted GE electricity transformer, 13 feet from their master bedroom, in their back yard for 33 years. They had no problems and no complaints; in their bedroom they could not hear the GE transformer. In April 2009, he contacted SCE to report that the GE transformer was leaking. SCE replaced the GE transformer with a Howard Industries unit which made an extremely loud disturbance, creating a nuisance which is unbearable. The Howard transformer was so noisy and loud that an SCE employee stated it could be heard in front of the house near the street. SCE stated it would replace the new transformer with the same model Howard transformer with deadeners applied to the inside of its cover. In June 2009, SCE installed the modified replacement transformer. The second Howard replacement unit was only slightly less noisy than the first and much louder than the original GE. SCE has refused to take any further action. Mr. Davis said that the GE transformer that they lived with for 33 years made only a light buzzing sound and could not be heard beyond five feet. The Howard Industries transformer makes a different noise, which is a low-tone hum, that can be heard from 50 feet. The Howard unit generates a quiet hum inside his house which is most audible in the closest area of the master bedroom, A2

21 C ALJ/RAB/gd2 13 feet from the transformer. The low-tone hum coming from the Howard unit is clearly audible and very loud compared to the light buzz from the original GE which could not be heard beyond five feet. The pervasive low-tone hum of the replacement transformer is a disturbing nuisance to his family. The low-tone hum is a nuisance and will be adverse to his property s resale value requiring complete disclosure. SCE s witness testified that the pad-mounted transformer located in Mr. Davis back yard serves 20 homes in the neighborhood. He said that the initial complaint by Mr. Davis was that the transformer was leaking oil. SCE replaced the original transformer April 16, This same day, Mr. Davis contacted SCE again, this time to report a humming noise coming from the new transformer. On April 17, 2009, a SCE field engineer conducted an on-site acoustical survey and recorded the noise level of the transformer to be within normal standards. Despite this, in order to satisfy Mr. Davis, in June 2009, SCE replaced the transformer installed on April 16, 2009, with a specially designed low-noise transformer. SCE s witness said Mr. Davis has continued to complain about noise from the transformer. SCE conducted two additional on-site acoustical surveys, a daytime survey performed on July 9, 2009, between 10:30 a.m. and 12:00 p.m. and a nighttime survey performed on July 30, 2009, between 9:30 p.m. and 10:30 p.m. The survey results show the sound level measurements are within the normal range. SCE field engineers shared the result of the surveys and explained to Mr. Davis that the transformer is operating as expected. Additionally, SCE field engineers discussed alternatives such as relocation, replacement, or concealment to be performed at Mr. Davis' expense. Mr. Davis declined these options A3

22 C ALJ/RAB/gd2 On March 23, 2010, SCE engineers invited an independent third party vendor, Veneklasen & Associates, to perform two acoustic surveys. The daytime survey was conducted at 11:00 a.m. on March 23, 2010, and the nighttime survey was conducted at 12:30 a.m. on March 24, The ambient decibel readings outside of the residence were around 45 dba for both the daytime and nighttime surveys. However, ambient decibel readings inside the residence were significantly lower for both surveys. SCE s witness testified that to accommodate Mr. Davis request for a nonstandard special order transformer installation, SCE can install the requested pad-mount transformer under the provision of SCE s Tariff Rule 2, Description of Service, Section H, Added Facilities. This tariff provision allows customers to request at their own expense facilities which are above and beyond SCE s standard facilities. For Mr. Davis, the total replacement cost of the non-standard transformer is approximately $17,990. The evidence presented by SCE shows the cost of the ABB transformer is $2,467; the Cooper Industries, $2,285. A comparable Howard Industries transformer is $3,023. Discussion We will order SCE to replace the Howard Industries pad-mounted transformer in Mr. Davis backyard with an ABB model or a Cooper Industries model, at no cost to Mr. Davis. SCE replaced a quiet GE transformer with a noisier Howard Industries unit for the convenience of SCE and the inconvenience of Mr. Davis and his family. The transformer in Mr. Davis backyard serves 20 families which is a convenience for SCE and 19 other families, but an inconvenience for the Davis family. There is no evidence regarding whether the GE transformer was reparable, but to replace it with a transformer A4

23 C ALJ/RAB/gd2 of lesser quality is clearly a degradation of service. The fact that the Howard unit meets minimum noise standards is irrelevant in this instance. Our concern is with the lowering of a standard for SCE s convenience with a concomitant inconvenience for Mr. Davis and his family. After 33 years of quiet, to be told that a similar quiet unit costs $17,990 is unreasonable. This is especially so when Mr. Davis, who does not benefit, bears the entire cost while 19 families plus SCE benefit at no cost. ORDER IT IS ORDERED that: 1. Southern California Edison Company shall at no cost to Mr. Davis, replace the Howard Industries pad-mounted transformer located in his backyard at Rusty Fig Circle, Cerritos, California with a pad-mounted transformer, either an ABB or Cooper Industries low noise transformer 75kVA/120/240/12kV. 2. Case is closed. This order is effective today. Dated September 23, 2010, at San Francisco, California. MICHAEL R. PEEVEY President DIAN M. GRUENEICH TIMOTHY ALAN SIMON NANCY E. RYAN Commissioners Commissioner John A. Bohn, being necessarily absent, did not participate A5

24 Appendix B Declaration of Mark Pearson in Support of Southern California Edison Company s Motion to Dismiss Complaint

25 EXHIBIT B DECLARATION OF MARK PEARSON IN SUPPORT OF SOUTHERN CALIFORNIA EDISON S MOTION TO DISMISS COMPLAINT I, Mark Pearson, declare as follows: 1. I am an employee of Southern California Edison ( SCE ), the defendant in this case. I have personal knowledge of the matters stated in this declaration and if called as a witness, I could competently testify to those matters. 2. I have worked for SCE since July 1980 and have served in a number of roles in both SCE s field operations as well as in SCE s planning office. I have approximately 20 years experience working in the field, over which time I was promoted through positions of increasing responsibility, including working as a Groundman, a Lineman, a Foreman to a service crew, and a Troubleman. In these positions, I was responsible for maintaining existing and installing new electrical infrastructure for transmission and distribution of electricity. In particularly, while in the field, I have personally replaced pad-mounted transformers as well as supervising teams that replaced pad-mounted transformers. In 2000, I was promoted to the position of Planner for Field Operations. As a Planner, I drafted the work orders that directed field personnel to install new facilities and maintain existing facilities. In April 2011, I was promoted to Planner Supervisor. In this position, I oversee 13 planners designing work orders for field personnel. My current geographic area of responsibility is the Long Beach District, which includes the City of Cerritos. Among my current responsibilities, I would routinely review and approve a work orders authorizing the installation of a replacement transformer. 3. I am personally familiar with the procedures SCE follows to collect, store and use data related to its electrical transformers. For every transformer put into service, SCE creates a record in its computer database system recording the transformer specifications, purchase history, and usage information. The record is first created in hard copy form at the time the transformer is installed by the foreman of the service team that installs the transformer. B1

26 Accountants in the Field Accounting Office later input the hard copy into the database. I understand this procedure has been in place since SCE began using a computer database to track its transformers, which was before my arrival. The transformer data can be accessed as needed by entering the transformer serial number into the database to generate a report called a Transformer Inquiry. 4. SCE employees, including myself, depend on the accuracy of transformer inquiry reports in the regular course of SCE s business. For example, the reports are relied on in evaluating whether transformers in a particular area can handle the electrical load serving customers in that area, are used for planning replacement of broken transformers as they break down, and are a resource used to verify SCE s capital investments. 5. Although the information in the database was originally designed to be updated as needed, this feature is no longer available for certain records. Around 2010, SCE upgraded its computer systems from the Distribution Project Information System ( DPIS ) database system that served SCE since 1979 to its current database system. At the time of the transition to the new database, the data stored in DPIS database was locked and could no longer be modified. Although SCE has a new database system in place, SCE employees are still able to read, but not modify, information in the DPIS database. 6. In connection with SCE s investigation of Mr. Davis s complaint, I requested a transformer inquiry report for GE Transformer serial number L445224T73AA from the DPIS database. According to the transformer inquiry report, the transformer was installed at Rusty Fig on October 24, 1975 and had a capacity of 75.0 kilovolt-amps. It was removed on or about June 24, Attached as Exhibit C to SCE s Motion to Dismiss Complaint is a true and correct copy of a screen capture of the Transformer Inquiry report for GE Transformer serial number L445224T73AA I created at 11:42 AM on April 9, In the course of my employment, I am also familiar with SCE s procedures for replacement of broken transformers. After a broken transformer is removed from service, it is typically delivered to salvage within two weeks for recycling of copper or other valuable metals B2

27 and for proper disposal of any hazardous wastes. Broken transformers are not repaired or reused because it is generally not cost effective for rate payers and not safe for service crews and customers working or living near the transformer. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 7th day of June, /s/ Mark Pearson Mark Pearson B3

28 Exhibit C Transformer Inquiry Report

29 C1

30 Exhibit D from John Davis to Chief Judge, Karen Clopton, dated June 8, 2011

31 D1

32 Exhibit E Letter from CPUC Consumer Affairs to John Davis, dated November 1, 2011

33 E1

34 CERTIFICATE OF SERVICE I hereby certify that, pursuant to the Commission s Rules of Practice and Procedure, I have this day served a true copy of SOUTHERN CALIFORNIA EDISON COMPANY S (U 338-E) MOTION TO DISMISS COMPLAINT on all parties identified on the attached service list(s) C Service was effected by one or more means indicated below: Transmitting the copies via to all parties who have provided an e- mail address. Placing the copies in sealed envelopes and causing such envelopes to be delivered by hand or by overnight courier to the offices of the Commissioner(s) or other addressee(s). ALJ David M. Gamson CPUC 505 Van Ness Ave. San Francisco, CA Commissioner Mark J. Ferron CPUC 505 Van Ness Ave. San Francisco, CA Placing copies in properly addressed sealed envelopes and depositing such copies in the United States mail with first-class postage prepaid to all parties for those listed on the attached non- list. Directing Prographics to place the copies in properly addressed sealed envelopes and to deposit such envelopes in the United States mail with first-class postage prepaid to all parties. Executed this June 8, 2012, at Rosemead, California. /s/ Christopher A. Stephens Christopher A. Stephens Project Analyst SOUTHERN CALIFORNIA EDISON COMPANY 2244 Walnut Grove Avenue Post Office Box 800 Rosemead, California 91770

35 CPUC - Service Lists - C Page 1 of 2 6/8/2012 CPUC Home CALIFORNIA PUBLIC UTILITIES COMMISSION Service Lists PROCEEDING: C DAVIS VS EDISON - D FILER: MR. JOHN S. DAVIS LIST NAME: LIST LAST CHANGED: JUNE 5, 2012 DOWNLOAD THE COMMA-DELIMITED FILE ABOUT COMMA-DELIMITED FILES Back to Service Lists Index Parties JOHN S. DAVIS WILLIAM SELDEEN RUSTY FIG CIRCLE SOUTHERN CALIFORNIA EDISON COMPANY CERRITOS, CA WALNUT GROVE AVE. FOR: JOHN S. DAVIS ROSEMEAD, CA FOR: SOUTHERN CALIFORNIA EDISON COMPANY Information Only CASE ADMINISTRATION JANET S. COMBS, ESQ. SOUTHERN CALIFORNIA EDISON COMPANY SR. ATTORNEY 2244 WALNUT GROVE AVENUE / PO BOX 800 SOUTHERN CALIFORNIA EDISON COMPANY ROSEMEAD, CA WALNUT GROVE AVENUE / PO BOX 800 ROSEMEAD, CA State Service DAVID M. GAMSON CALIF PUBLIC UTILITIES COMMISSION DIVISION OF ADMINISTRATIVE LAW JUDGES ROOM VAN NESS AVENUE SAN FRANCISCO, CA

36 CPUC - Service Lists - C Page 2 of 2 6/8/2012 TOP OF PAGE BACK TO INDEX OF SERVICE LISTS

37 JOHN S. DAVIS RUSTY FIG CIRCLE CERRITOS CA List of Non Recipients