ML040160596

Leprino Food Companys Notice of Hearing and Motion for Determination of Ordinary Course Liability, or in the Alternative, Allowance and Payment of Pre-Confirmation Administrative Claim

ML040160596
Person / Time
Site:	Diablo Canyon
Issue date:	01/09/2004
From:	Dahl W Dahl & Dahl, Leprino Foods Co
To:	Office of Nuclear Reactor Regulation, US Federal Judiciary, Bankruptcy Court, Northern District of California
References
01-30923 DM, 94-0742640
Download: ML040160596 (3)

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WalterR. Dahl, BarNo. 102186 CandyDahl.BarNo. 186031 DAsL & DAL ATnomiKYS AT LAW 2304 'NW Strect Sacramento, CA 95816-5716 Telephone: (916) 446-8800 Telecopier. (916)446-1634 Attoreys for Leprino Foods Company UNITED STATES BAN5U1UPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 50 `313 In Re' Pacific Gas and Electric Company, a California corporation TMN; 940742640 Debtor(s).

Case No.:

Chapter I I Dale:

Time:

CtRm:

Judge:

Pl=c:

01-30923 DM Febmtary 9,2004 1:30 p.m.

22 Dennis Montali 235 Pine Street San Francisco CA 94104 10 2

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9 10 11 12 13 14 15 16 17 Is 19 20 21 22 23 24 25 26 27 28 Company, a Calionria corporation ("DebO) is an "Ordinafy Course Liability" pursuant to the Confirmation Order uind Exhibit "A" entered in Debtor's cas on December 22, 2003 or in the alternative, for allowance of a pre-confirmation adminirative claim against Debtor.

In support of he motion, Leprino represents as follows:

1. Debtor filed its petition under Chapter 11 of the Bankruptcy Code (ll U.S.C. §101 et seq.)

on April 6, 2001.

2. On or abo August 31, 2001, Leptino entered into an Electricity Sale and Purchase Agreement with Sempra Energy Solutions for Leprino's cheese manufacturing facilities in Lemoore, California, which permitted Leprino to take advantage of direct access electrical utility service at such facility (-the Direct Acceas Agreement")

3. DecisionNo. 02-03-055 isuedMarch2l,2002bytheCalifomniaPublicUtilities Commission

("the PUC") provides that direct access agreements signed priorto September 20.2001 re enforceable.

4. To date, 9ebtor has refused to honor Leprino's rights under the Direct Access Agreement, as more fully set forb in the June 4, 2003 letter of Thomas S. Knox, Leprino's state court counsel, to Debtor, a true and correct copy of which is attached as Exhibit "A".

5. Absent 1ebtoe's Chapter 11 case and Banuptcy Code §362(a), Leprino would have commenced an actioin aCifomliaSuperiorCourtagainatDebtorthe PUC, andpoiblyotherparties, secking injunctive reieftoprecludeinterferencewithperformanceofthe Direct Access Agreemen4 and seeking monetary relief for the damages uffered by Leprino as a consequence of not being allowed to obtain the benefits of the Direct Access Agreement.

6. It remains Lepnno's preference to initiate and prosecute such litigation, and Leprino believes that a California Superior Court is a more appropriate formm for adjudicating the rights of Debtor and the various nondebtor parties. particulay as rerds the injunctve reliefiwsus

7. Leprino asserta that its claims agaist Debtor relating to the Direct Access Agreement fall within the definitioa of "Ordinary Course Liability" contained in Debtor's Plan and are accordingly excluded from the dischare of Bankruptcy Code § 141(dXI), nd thus that Lepino ray now initiate and proecute the litigation referenced above.

8. In the alternative, Leprino is entitled to allowance and p of preconfirmation 2

LEPRINO FOODWCOMPANY'S NOTICE OF UEAIUNG AND MOTION FOR DETERMINATION OF ORDINARY COURSE LIABILITY, ORP IN THE ALTERNATIVE, ALLOWANCE AND PAYMENT OF PRElCONPIRlATION ADMINISTRATIVE CLAIM Please take notice that ahearingon the Motion for Determination of Ordinary Course Liability, Or, in the Alternative. Allowance and Payment of Pre-confirnation Administrative Claim filed by Leprino Foods Company, a Colorado corporation ("Leptino") shall be heard before the Honorable Deniss Montali, BankruptcyJudge, in Courtroom 22, United States BankruptcyCourt, 235 Pine Street, San Francisco, CA 94104 on February 9,2004 at 1:30 p.M.

Bythis motion, Leprino seeks anorderdetennining that its claim against Pacific Gas and Electic I-1AUUWKUU&

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1916551 administrative claim against Debtor. Lepdno seeks, as an administrative non-monctauy claim, a permanent injunction against Debtorprecluding interference with recognition of and enforcementof the Direct Access Agreement. In addition, Leprino seeks allowance and payment of an administrative mnonetary claim for the damages suffered by Leprino as a consequence of not being allowed to obtain the benefits of the Direct Access Agreement, an amount which is estimated through December10. 2003 atapproximatelySI,510,040. The amount ofthis monearyclaim will continue to incrase until Leprino is afforded direct access under the Direct Access A, ement. In the event this court is unable or unwillingto gntLrino permanentijunctive relief. theamountofLeprino'sadministrativemonctary claim by reason of being permanently precluded from direct access will be substantially greater, and must be determined by this court afler eideniy hearings.

9. Lepno reserves tbe right to present additional evidence in support ofthis motion. particularly in the event its claims against Debtor are found not to be within the definition of 'Ordinary Course Liability".

WHEREFORE, Leprino prays:

1. For an order determining Lepdino's claim against Debtor relating to the Direct Access Agreement ae "Ondinary Course Liability" or, in the ultenative;

2. For an order allowing Leprino's claims t

the Debtor relating to the Direct Access Agrement as pre-confirmation administrative claims, with appropriate injunctive relief and monctary relief according to prooP,

3. For such other and ftrther relief as the court dems just.

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CMKMuf June 4. 2a3 Mr. Calvin Yee I

ESP Relations Corporate Account Manager Pacfic Gas & Elecric P.O. Box 770000 Mail Code B 19C.

San Francisco. Caiomia 9177 Re:

Lps Fee Company's DirsdAcws Cea tr

Dear Mr. Yea:

This office represats Lepnno Foods CompanY Mlpw"). Lepnno owns and operates a cheee processing plat ted 351 Belle Haven Dnvc LnMoore, Calif*liM and crmmoay referred to as the "Lemoort Wes faility."

I am witing Paific Gas & Electic ?&En) refises to honor an agreement beraseen Lepro and Sem xa Energy Solutions (SeMp

) that would allow Lcpdno n operat its pemoore West faclity on direct access service. PG&E's refisl to hor the sareem" Ls conrrary to the law and cmten reuA&tiotL In the Electricity Sale and Purchse Agreement ('Areeent by ad between Lepiro and Serpra, Leprino agreed to puchae all of its electricity qufcaudiectly fiont Sn effective August 31, 2001. Ibis direct acs service AVe en included L4prino's Luoee West lkaility. While Lentoore Wee was under cnstruction LqID operated under fiur utility umeter which provided I)0% of its electricity requirmmntsb Meter No 93R773. 87M0

](20083 and X200U4. Each of these meers qualified for dired acces sarvice put to thu Agreement.

As you Irow, t Calioia Public Utility CoMims

('CPUCe") in Dead" 023-055. suspended direct acawss aervtce in response to te eme cy elect& crisi in CalfOni Assembly Bill IX and CPUC Decision 014060 oweve, in Decisiob 02.

55. the CPUC ruled that existin ti di ac t

h the CPUC refsed to allow now or additional accoun to direct access vc PG&E is rured to peoces dire accssrce agements relating to pee-epteber 20, 2001 direct access contracts. Or a rments. New or Addiona accounts that rquire i ll f a additil aeter or require a new aclst s

service _ag ra rt we penmlited.

t service or to replace or an now

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EXyIBIT'A' Dateda6W~~4~f DAHL & DAHL ATTORNEYS AT LAW

.Water R. ah Attorneys for Leprino Foods Company 3

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S*aW283 12:53 1S155-107 it. C4LVi YOM AuM 4, 2003 Pap 2 OGWGaI28e 82:53 151655U1ql7a wCaaviyao JuR04, 2003 pW3 PAGE 84

%'-S Oa Deembe 2.2002. Da Z

w. the Wa R i Couoller t Leno w yu trquesg that PG&E upgrads an anius mw and plus it an direct access srce at the Lmoof Wat facility. LxPrio povided PO&E poof of it elibility as a dir accss customer Las ccdance wth CPUC De-isi 02-03455.

AU fiwr mte listed above wmre acitiv on Septemba 20. 2001.

Thn of the fur l

man w co solidated iato Met No.

X46043 on Apdl 21,2002. Wr. Zaiuow requested that she b metr, Mete No. 93R773, be c

bolide in Met No. X46043 and that M e No. X46043 be plaed al doct access sevice madiaely in acodance with the Agreement &ndth UC's? e Decisu In yor Jmary 2E. 2003 ail reso to ML s December 2,2002 liner, you t3ected Leptio's pest and demned based on your inpradon of CPUC Dcison 02-03-055. tat Me No. X46043 was not eligible r dirctlacccs service. Specifically, you concluded that Mew No. X46043 wasa "W accoune Ti pmeibis not sWppoted by CPUC Decision 02-03.055.

1 The euls you cot fom CPUC Dcisi 023-0355. Section M. Number 6 regarding tde general sandstill pricple is coect. However n the sn Deion, the Commison consaued the tre, adoputin an eei tht al Lepin to CO wilh direct s

vice. The Commision saedA.

Rule should not ha consnued to preent, a Spmmber 20, 2001, the itauallaon of me rs ma reedig equipmt Asnpcary to nitiatc dire accas evie (r eligible cusme or the I

ea t upgrade of e mes fOr exmn direct access cusomes."

(Section IL Rule 6 otDecislon 02-3455.)

Lepdo as an esting eligible direct access cum requested that the Iour mee that provided 100% of the electrcty to Lemoo Wri be con ded into one mew that would provide 100% of the electricity to Lenooe WesL Lpno'soLUooe Wesn facty account was on the L of eligible accous provied so s CPUC aid PG&E Thaefore consolidation of the

&r mdst t Metw No. X46043 is mPly a replacenent qf eisi direct acc meters at an ei4ast dect acce" locaIum Wbethe PG&E chooe to claw& each mer as a s*parate accout o as a Usg account, the ret is te ame M4r No. X46403 must ha piaced on dirct ac sevice since it b maely a "replace>met... of xisting meters fat an] existing dki access (cust eJ.'" Lepo has nm added ot rqird a "nw Acc as you sgest; itissmply upgrading and rplacin eis n m eter Acrdi.y, Lp o rquet that Mer No. 93RT73 be csolida mb Metr No.

X46403 ud that PG&E allow Lepen to operate Mer N X46403 on direct aeservice n ccordan wth its Agmeent and the CPUC Decidw If Pacific Gas ad Eletic fals to abide by the CPOCs dcision and allow Lepdmo, an eligie direct ASu1 csom operae the Lemoate West facilty an direct acces SerVA pWs to it contract with Semp. Lpino will be ft with o choice but to pursue all of au available ega remedies EXHIBIT '

PAGE 2 OF 3 Plea fee Aft to cal to dus &ny quon wu m may hat. Thank you for your attention to this a-te.

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