HomeMy WebLinkAboutCebridge Communications v. Nevada LAFCO ATTORNEY -CLIENT PRIVILEGED AND CONFIDENTIAL MEMORANDUM
DATE: Friday, November 11, 2005
TO: Truckee Donner Public Utility District— Board of Directors
FROM: Steven C. Gross, General Counsel
RE: Summary of the Trial Cebridge Communications v. Nevada
County LAFCo
The trial in the matter of Cebridge Communications vs. Nevada County LAFCo was
conducted on Monday, November 7, 2005 in Nevada County Superior Court, Nevada City.
In this matter, Cebridge challenged the validity of LAFCo's approval of the District's application to
provide broadband services. The case was tried before Judge Dover, Presiding Judge of the Superior
Court. At the trial, Nevada County LAFCo was represented by its General Counsel, Scott Browne.
The District was represented by Special Counsel, Nancy Miller and me. Eagle Broadband was
represented by Daniel McCloskey. Cebridge Communications was represented by Richard Patch,
Greg Ficks and Craig Diamond. Also in attendance were Peter Holzmeister, Alan Harry and Paul
Norsell, Chairman, Nevada County LAFCo.
Because this case involved a challenge to LAFCO's decision, the legal standard of review is
stated as—Was there substantial evidence in the record to support LAFCO's decision to approve the
District's application? The other primary issue in the case, that the court may consider de novo, is
whether the District has the legal authority to provide cable television and broadband services. In
determining whether there was substantial evidence to support LAFCo's decision, the Court reviews
and considers the record of LAFCo's proceedings concerning the District's application over the
course of the past five years and makes its determination based upon that record. Therefore, at the
trial no new evidence was presented, i.e., no new documents and no witnesses. This is a matter that
was heard by the court.There was no jury.
Up until the time of the trial, this case had been heard by Judge Ursel Edwards. Judge
Edwards retired earlier this year. Therefore, we did not know until about a week prior to the trial
which judge would hear the case and whether or not he would be familiar with the case. On Friday
I
afternoon, November 4, 20005, Judge Dover faxed each of the parties a"Tenative Decision". In this
Tentative Decision, he stated that the court was not issuing a Tentative Decision i.e. a preliminary
ruling pending oral argument and further consideration; rather, he indicated that no tentative decision
would be issued.
The Tentative Decision listed numerous questions that the court told the attorneys to focus on
during the trial. The questions focused on three broad areas. The first area was a procedural matter
and had to do with whether or not Cebridge could properly bring its case under the California
validation statute. The second broad area had to do with whether the District has legal authority to
provide a cable television and broadband services. The third broad area had to do with whether there
was substantial evidence in the record to support LAFCO's decision to approve the District's
application.
The court conducted the trial, which really consisted of hearing oral argument from counsel,
for approximately two hours. During that time, counsel for each of the parties was provided the
opportunity to answer the questions posed by the court in the Tentative Decision. During the oral
arguments, the Judge was relatively quiet, asking perhaps only a half a dozen or so questions. He
really simply let counsel answer the questions that he had asked.
Neither during the oral argument nor at the conclusion of the hearing did the Judge give any
indication as to how he will rule on the case. At the conclusion of the oral argument, he took the
matter under submission and did not issue any decision. There will be no further briefing of the
matter for the court.
The court has 90 days from the date of the trial in which to issue a written decision. Overall,
counsel for LAFCO and District felt very good about the case as a whole, the questions asked by the
court and the oral argument presented. I certainly hope that this is not a case of us being overly
confident however, we are certainly encouraged that we will obtain a favorable result for the District.
As soon as we have some indication or a decision from the court, I will let you know. Please do not
hesitate to contact me if you have questions about the trial and the matter.
2
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