Modification: Rittiman v. Public Utilities Commission

BRANDON RITTIMAN et al.,

Petitioners,

v.

PUBLIC UTILITIES COMMISSION,

Respondent.

No. A162842

(Public Utilities Commission Nos. 20597, 20598, 20599 & 20600)

California Court of Appeal

First Appellate District

Division One

Filed July 13, 2022

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on June 17, 2022, be modified as follows:

On page 16 modify footnote 11 to read as follows:

In some specified instances, an application for rehearing must be filed within 10 days of issuance of the challenged order or decision. (Pub. Util. Code, § 1731, subds. (b)(1), (c), (d).) However, the CPUC seems to agree that the 30-day, rather than the 10-day, period would apply to seeking rehearing of a CPUC resolution affirming the denial of a PRA request.

On page 16, delete paragraph beginning with "The commission then has up to 60 days to either grant or deny an application for rehearing" and replace with:

The commission then has up to 60 days to either grant or deny an application for rehearing. (Pub. Util. Code, § 1733, subds. (a) & (b).) If the commission does not grant or deny an application within 60 days, the party seeking rehearing may consider the application denied and seek judicial review. (Ibid.) Whether or not the challenged order or decision is suspended during this time depends on when the application for rehearing is filed and how quickly the commission acts on the application.¹² (Ibid.)

On page 16, delete paragraph beginning with "Thus, the statutory times specified by the rehearing statutes---which, not even accounting for any rehearing, itself, total at a minimum at least 70 days..." and replace with the following paragraphs:

If the commission grants the application without "a suspension of the order involved, the commission shall forthwith proceed to hear the matter with all dispatch and shall determine the matter within 20 days after final submission" on rehearing.¹³ (Pub. Util. Code, § 1734.) Otherwise, there is no timeframe for rehearing and final determination.¹⁴

Thus, just the application-for-rehearing process for a resolution affirming the denial of a PRA request, itself, can take 90 days (30 days to file an application and 60 days for the commission to act). And if the commission grants the application, there is no time frame for the rehearing and disposition process.¹⁵ These extended time periods cannot be squared with the procedural provisions of the PRA mandating that agencies respond to requests within a much tighter timeframe.

In inserting footnotes on page 16 (footnotes 12, 13, 14 & 15), the subsequent footnote numbering shall be modified to the correct sequencing.

Dated:

Humes, P. J.

^12. Public Utilities Code section 1733 provides:

"(a) Any application for a rehearing made 10 days or more before the effective date of the order as to which rehearing is sought, shall be either granted or denied before the effective date, or the order shall stand suspended until the application is granted or denied; but, absent further order of the commission, the order shall not stand so suspended for more than 60 days after the date of filing of the application, at which time the suspension shall lapse, the order shall become effective, and the application may be taken by the party making it to be denied.

"(b) Any application for a rehearing made within less than 10 days before the effective date of the order as to which rehearing is sought, and not granted for 60 days, may be taken by the party making the application to be denied, unless the effective date of the order is extended for the period of the pendency of the application." (Pub. Util. Code, § 1733, subd. (a), (b).)

^13. If the commission does not decide the matter within 20-days of submission, the party that sought rehearing may treat the decision as having been affirmed. (Pub. Util. Code, § 1734.)

^14. In its petition for rehearing, the CPUC states that, in practice, the 20-day period never applies because "when a rehearing is granted, the relevant holding is always vacated," acknowledging "there is generally no defined timeframe for the [c]ommission to conduct a rehearing."

^15. In its petition for rehearing, the commission asserts any rehearing of a resolution affirming the denial of a PRA request would entail nothing more than correcting any identified legal errors in the resolution, which it assures us would not result in any "indefinite delay." While this may be the CPUC's aspirational goal, there is no assurance that will be the case, as the instant proceeding demonstrates. Moreover, the salient point is that the statutes that control the rehearing process impose no time frame for the rehearing of, and final action on, a resolution affirming the denial of a PRA request.