United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

VECTREN COMMUNICATIONS SERVICES,

Plaintiff,

 v.

CITY OF ALAMEDA.,

Defendant. /

No. C 08-3137 SI

FINAL PRETRIAL SCHEDULING

ORDER

On January 26, 2010, the Court held a final pretrial conference in the above captioned matter,

which is set for jury trial beginning February 8, 2010. All parties were represented by counsel. The

following matters were resolved:

1. Number of jurors and challenges: There shall be a jury of 8 members. Each side shall

have up to four peremptory challenges.

2. Voir dire: The court will conduct general voir dire, and counsel for each side shall have

up to 20 minutes total to question the panel. 

3. Jury instructions: Counsel have submitted certain joint proposed jury instructions, and

separate sets of contested instructions. No later than Thursday, February 4, 2010, counsel shall submit

one complete set of proposed instructions, containing both agreed upon instructions (which shall be so

noted), and contested instructions, all in the order in which they should be read to the jury. Where

contested instructions are included, they should be annotated both with the proponent’s authority for

seeking the instruction and the opponent’s reason for opposition. Where feasible, competing

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instructions addressing the same point shall be included together in the single set of proposed

instructions. The final submission shall be filed in hard copy and also submitted to the court on disk,

suitable for reading by WordPerfect 10 (windows) on or before February 4, 2010.

4. Trial exhibits: No later than February 5, 2010, the parties shall submit their trial

exhibits, in binders with numbered tabs separating and identifying each exhibit. The court shall be

provided with three sets (for the court, the file and the witness) and each side shall provide one set for

the other side. To the extent that original documents are to be used as exhibits in the case, they should

be included in the set of exhibits for the court.

5. Timing of trial: Plaintiff estimated that its case would take approximately 8 days and

defendant estimated that its case would take approximately 6 days. However, at least 9 of the parties’

witnesses are in common, and the summaries indicate substantial overlap in the evidence. Based on

these estimates and issues, it is anticipated that all of the evidence can be presented in 11 days, plus time

for voir dire, opening statements, instructions and closing argument. Therefore, each side shall have

60 minutes for opening statements; each side shall have 28 hours total for presentation of evidence,

which includes direct and cross-examination and presentation of all exhibits; and each side shall have

up to 60 minutes for closing argument. 

6. Trial schedule: Jury trials are generally conducted Monday through Thursday; jury

trials are generally not conducted on Fridays, although deliberating juries are free to deliberate on

Fridays. The trial day runs from 8:30 a.m. until 3:30 p.m., with a 15 minute break at 10:00 a.m., a 30

minute break at 12:00 noon and a 15 minute break at 2:00 p.m., all times approximate. February 15,

1210 is a federal holiday; court will not be in session that day.

7. Motions in limine: The parties filed twelve motions in limine, as follows:

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Plaintiff’s motion in limine No. 1: Relying on a 2004 Release Agreement, plaintiff

seeks to exclude all evidence and argument that Vectren’s pre-June 2002 or pre-contract activities

related to the Telecom System harmed the City in any way. Defendant states that it does not intend to

introduce evidence that plaintiff breached any duties, but that the City intends to introduce evidence

about how Vectren operated and managed the Telecom System in order to show that the City’s operation

and management of that system was reasonable. The Court GRANTS the motion as framed, however

the City may put on evidence about how Vectren managed and operated the Telecom System.

Plaintiff’s motion in limine No. 2: Plaintiff seeks to exclude evidence and/or argument

relating to defendant’s equitable defenses of waiver, estoppel, laches and unclean hands. The Court

agrees with the City that the City did not contract away these defenses, and accordingly the motion is

DENIED. To the extent plaintiff contends that the jury should not be instructed on these equitable

defenses, the Court will address those matters at the jury instruction conference.

Plaintiff’s motion in limine No. 3: Plaintiff seeks to exclude evidence and testimony

relating to the “presentation” and “perfection” of Vectren’s claims pursuant to the California

Government Claims Act or the April 2004 Amended and Restated Installment Sales Agreement (“ISA”).

Plaintiff is not seeking to exclude evidence and testimony regarding (1) whether § 9 of the ISA was

intended by the parties to supplant the Government Claims Act or (2) whether some of plaintiff’s claims

are barred by the statute of limitations. The Court GRANTS the motion as framed. 

Plaintiff’s motion in limine No. 4: Plaintiff seeks to exclude evidence of (1) Vectren’s

financial performance, (2) the reasons for and decision-making that led Vectren’s parent corporation

to cause Vectren to cease designing and constructing broadband systems in 2002 and all other activities

in early 2004, and (3) Vectren’s design/construction and/or consulting work for telecom systems owned

and operated by others. The Court GRANTS the motion as framed. However, the Court will permit

the City to put on evidence regarding the parties’ intent and expectations in entering the 2002 and 2004

agreements. The Court will also permit the City to put on evidence regarding Vectren’s experience with

other telecom systems to the extent such evidence relates to the City’s claims that the City managed and

operated the Telecom System consistent with industry standards.

Plaintiff’s motion in limine No. 5: Plaintiff seeks to exclude cumulative expert

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testimony and hearsay expert reports. The motion is DENIED without prejudice to raising specific

objections at the time of trial to cumulative evidence. The motion is GRANTED to the extent that

hearsay expert reports will not be admitted into evidence.

Defendant’s motion in limine No. 1: Defendant seeks to exclude evidence relating to

plaintiff’s accounting allegations for failure to comply with the Government Claims Act. The Court

DENIES the motion on the ground that an accounting is an equitable remedy not subject to the claims

presentment requirement. Further, even if the presentment requirement applies, the Court finds that

Vectren provided the City with pre-litigation notice that Vectren questioned the revenue calculations.

The request for an accounting is interwoven with Vectren’s other claims, and the claim fairly reflects

the facts pled in the complaint. 

Defendant’s motion in limine No. 2: Defendant seeks to exclude testimony by Bruce

Jones regarding operating expenses. The Court DENIES the motion, as defendant’s objections go to

the weight, rather than the admissibility, of Mr. Jones’ testimony, and defendant can raise issues about

Mr. Jones’ areas of expertise and the relevance of his opinions through cross-examination.

Defendant’s motion in limine No. 3: Defendant seeks judgment on the pleadings,

summary judgment, or judgment as a matter of law on plaintiff’s claim for an accounting. The Court

DENIES the motion because California law does not require a fiduciary relationship for an accounting,

and there is a dispute between the parties regarding how much – if any – is owed to Vectren.

Defendant’s motion in limine No. 4: Relying on Section 9.1(f) of the ISA, defendant

seeks a determination that plaintiff’s claims arising from its allegations that the City improperly

accounted for its net telecom revenues must be based upon fraud or willful misconduct. The Court

DENIES the motion, and finds that the language of Section 9.1(f) provides for acceleration and other

remedies in the event of a default due to fraudulent accounting, but that the “willful misconduct or

fraud” standard contained in Section 9.1(f) does not apply to all claims that the City improperly

accounted for revenue.

Defendant’s motion in limine No. 5: Defendant seeks to exclude references to “notes”

“bonds” or “debts” on the ground that those terms are prejudicial because they suggest that the City’s

obligation to Vectren is a debt, rather than contingent. The Court recognizes the City’s concern, and

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yet as a practical matter it may difficult to exclude all references to these terms, some of which are

included in the titles and descriptions of documents in this case. The City may propose a limiting

instruction and/or alternative terminology.

Defendant’s motion in limine No. 6: Defendant seeks to exclude “voice arguments not

supported by contractually-required notice and an opportunity to cure.” The Court DENIES the motion,

finding that the prelitigation correspondence put the City on notice that Vectren believed the City was

in breach by not adding voice capability.

Defendant’s motion in limine No. 7: Defendant seeks to exclude evidence or argument

that any alleged default entitles Vectren to monies beyond Net Series 2002A Revenues actually earned

by the Telecom System. The Court DENIES the motion, finding that the City is rehashing the argument

it made in summary judgment, namely that there is no claim for breach of the ISA relating to the sale

of the Telecom System. As set forth in the summary judgment order, the Court finds that it is

ambiguous as to whether the ISA permitted a sale of the System, and thus this question remains for trial.

8. Further Settlement Conference: Both retired Judge Michael Ballachey and Magistrate

Judge Joseph Spero have previously worked with the parties in efforts to resolve these claims, and either

would be willing to continue these efforts upon request. The parties are strongly urged to continue

efforts to resolve this dispute by agreement. 

IT IS SO ORDERED.

Dated: January 27, 2010

_____________________________

SUSAN ILLSTON

United States District Judge 

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