CHRISTOPHER J. NEARY (#69220)

JENNIFER M. O’BRIEN (#278821)

NEARY and O’BRIEN

110 South Main Street, Suite C

Willits, CA 95490

Telephone: (707) 459-5551

Facsimile: (707) 459-3018

Attorneys for Plaintiff,

NORTH COAST RAILROAD AUTHORITY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MENDOCINO

NORTH COAST RAILROAD

northno

AUTHORITY, a public agency, Case No. SCUKCVPO 15-66151

northno

Plaintiff, PLAINTIFF’S ANSWERS TO

v. DEFENDANT, PACIFIC BELL

TELEPHONE COMPANY’S

PACIFIC BELL TELEPHONE SPECIALLY PREPARED

COMPANY, a California corporation, INTERROGATORIES

dba AT&T CALIFORNIA; THE

PACIFIC TELEPHONE AND

TELEGRAPH COMPANY, a California

corporation; BELL TELEPHONE

COMPANY OF NEVADA, a Nevada

corporation; NEVADA BELL

TELEPHONE COMPANY, a Nevada

corporation; and DOES 1 through 50,

inclusive,

Defendants.

/

PROPOUNDING PARTY: PACIFIC BELL TELEPHONE COMPANY

RESPONDING PARTY: NORTH COAST RAILROAD AUTHORITY

SET NO.: ONE

Plaintiff, North Coast Railroad Authority, has not completed his investigation of

the facts in this case and has yet to complete discovery in this matter. Plaintiff therefore

expressly reserves its right to amend or supplement these responses at any time pursuant

to any information that is discovered or recovered after the date of these responses

without assuming any duty to do so unless required to do so by the Code of Civil

Procedure or order of the court.

General objection to Definition Number H, “the encroachments.” The reference to “22

encroachments” in a demurrer response prepared under time pressure on or about November 3,

2016 was not for any purpose other than to call to the court’s attention that there were a number

of encroachments which could not possibly be characterized as highway crossings by any

reasonable argument and not for the purpose of entering into a binding pleading that there are

only 22 encroachments not in public places. The methodology of counting is not recalled, it

being apparent that a longitudinal fiber optic line was encountered at seventeen specific points

and longitudinal crossings at seven additional points. However, at this time the Responding

Party cannot recall the additional five encroachments by location or by characterization and the

reference to 22 may have been a miscount made under time pressure to respond to a demurrer

filing at the early stage of the case. The seventeen points of fiber optic cable detections are

identified in the response to Special Interrogatory 8 below. The operative pleading, the First

Amended Complaint, offers notice as to the nature of the complaint

SPECIAL INTERROGATORIES

SPECIAL INTERROGATORY NO. 1: Do YOU contend that PBTC maintains the

Encroachments without YOUR permission or consent?

RESPONSE: Yes

SPECIAL INTERROGATORY NO. 2: If YOUR response to Interrogatory No. 2 is

anything other than an unqualified “No,” do YOU contend that PBTC’s maintenance of

each Encroachment represents an individual act of trespass?

RESPONSE: YES. Each unlicensed encroachment is a wrongful

occupation.

SPECIAL INTERROGATORY NO. 3: If YOUR response to Interrogatory No. 2 is

anything other than an unqualified “No,” state the dates, respectively, upon which YOU

contend PBTC’s trespass at each of the 22 individual Encroachments commenced.

RESPONSE: The dates of individual entries upon the property of the North

Coast Railroad Authority are unknown because the encroachments were made without

notice to NCRA. The NCRA files do not reflect any written notices of entry upon the

NCRA property as required by the 1959 Agreement, even if that agreement was

binding upon the NCRA. However, each individual trespass and wrongful occupation

is continuing. NCRA is aware that entry was made during the month of September

2015, and specifically, at the least, September 3-5, 2015 by PTBC doing business as

AT&T California and /or its contractors for the purpose of repair of a fiber optic line

the extent of which line was then unknown to the NCRA, and that NCRA received no

notice from Defendant, or any person acting on behalf of the Defendant, or Defendant’s

predecessors prior to any entry upon the property of Plaintiff. It is apparent from

Propounding Party’s document production in response to discovery that it does not

possess any written notifications to NCRA such as would be required even if the 1959

Agreement was binding on NCRA, those documents indicating that Propounding Party

and Southern Pacific developed a practice, the precise definition of which was

apparently never solidified, that Defendant, or its predecessors in interest, would

provide telephonic notice to the Railroad in advance of entry. Since at least 2002, as

known to the current management of NCRA no such notice was ever delivered by

Defendant, with the exception of a telephone crossing near Kunzler Ranch Road in

Ukiah, but Defendant withdrew the notice. With the exception of four telephone boxes

believed to have been removed, the trespass and wrongful occupation is continuing.

SPECIAL INTERROGATORY NO. 4: IDENTIFY all documents that support

YOUR response to Interrogatory No. 3.

RESPONSE: (1) 1959 Agreement, and amendments thereto; (2) NCRA

Administrative Code; (3) Defendants responses to Request for Inspection of Documents,

Bates Numbered PBTC 000001-000357; (4) December 2015 North Bay/North Coast

Broadband Consortium report entitled, September 2015 Telecommunication Outage and

the Impact on Residents of Mendocino County 230-268; (5) September 11, 2015 Press

Democrat article; NCRA v. PBTC Bates ##000278-000279; 001612-001613.

SPECIAL INTERROGATORY NO. 5: If YOUR response to Interrogatory No. 2 is

anything other than an unqualified “No,” state the date(s) upon which YOU discovered what

YOU believe was PBTC’s trespass at each of the 22 individual Encroachments, respectively.

RESPONSE: Objection, ambiguous, see General Objection to Definition H.

Objection, the interrogatory is compound. Without waiving these objections NCRA

responds that it requested that its property manager, Parallel Infrastructure, conduct an

inspection of the Russian River Division of the railroad which inspection was conducted

during the year 2014 and the results transmitted to NCRA in March 2015 after Parallel

Infrastructure encountered a posture by Defendant that it would not cooperate with the

NCRA. In that examination Parallel Infrastructure determined that 63 encroachments

were not documented as being licensed in NCRA’s records, and of those approximately

23 were non-longitudinal installations. NCRA has subsequently identified 139

encroachments by defendant, the location of which the NCRA has transmitted to the

Defendant on or about May 10, 2016 on a voluntary disclosure basis, in which the 63

encroachments are identified.

SPECIAL INTERROGATORY NO. 6: IDENTIFY all documents that support YOUR

response to Interrogatory No. 5.

RESPONSE: NCRA Bates Numbered 000369-000425; 001589; Complaint on file herein.

SPECIAL INTERROGATORY NO. 7: Do YOU contend that any of the 22 individual

Encroachments is concealed from view, or that YOU were unable to determine the presence of

any of the 22 individual Encroachments, at any time during PBTC’s maintenance of that

Encroachment?

RESPONSE: See General Objection to Definition H, rendering the

interrogatory ambiguous, and compound. Without waving these objections it is

contended that some of the 63 places where encroachments have been , identified in

NCRA v. PTBC Bates ## 001589, 000493-000559 particularly those buried in the

ground, are concealed from view. NCRA believes that there may be encroachments the

identity and scope of which are presently unknown to the NCRA because they are

concealed from view and the NCRA is unable to determine their presence because they

are concealed from view, but as to those, there apparently is a buried fiber optic line

unknown to the NCRA depicted in 004193-00559 which the NCRA discovered shortly

after May 13, 2016, the nature and extent of which is presently unknown and which may

be connected to the 17 points where fiber optic lines were documented by Parallel

Infrastructure.

SPECIAL INTERROGATORY NO. 8: If YOUR response to Interrogatory No. 7 is

anything other than an unqualified “No,” identify those individual Encroachments (via

reference to the attached Exhibit A) which YOU contend were concealed from YOUR view at

any time during PBTC’s maintenance of that Encroachment.

RESPONSE: Object Id nos. 2, ,7, 8, 9, 10, 13, 15, 16, 17, 22, 29, 30, 31, 32, 33,

37, 39 were detected by Parallel Infrastructure by means unknown to the NCRA except

that successor employees of Parallel Infrastructure have referenced fiber optic cables

which are insufficient to determine the extent of such installation either by its

commencement or terminus or confirmation of any place other than those places where

there are fiber optic crossings; possibly 3; 6, 23, 34, 45, 58, 61 appear to be fiber

crossings of rail intersection with streets, marked or unmarked and ascertainable if

marked, and not ascertainable if unmarked,; and possibly encroachments denominated

as “Phone Line Crossing,” some of which are buried.

SPECIAL INTERROGATORY NO. 9: Do YOU contend that PBTC owes YOU any

compensation for its maintenance of the Encroachments on YOUR property?

RESPONSE: For any encroachment for which there is determined in this action

to be no cognizable legal right for its maintenance on NCRA property, the response, is

YES. For any encroachment for which there is a valid lease and unpaid compensation,

the response is YES.

SPECIAL INTERROGATORY NO. 10: If YOUR response to Interrogatory No. 9 is

anything other than an unqualified “No,” for each individual Encroachment, state the amount

which YOU contend PBTC owes YOU as a result of its maintenance of that Encroachment on

YOUR property.

RESPONSE: For each encroachment identified in response to Interrogatory

Numbered 9, Propounding Party owes the NCRA the amounts set forth on NCRA’s

standard price list for encroachments, (Bates No 000925-001178; 000922-000924), or

such other amount as may be determined by any legal process. For any of the

unpermitted encroachments which the Defendant wishes to maintain, it would owe

NCRA’s standard rate processing fee which includes the cost of NCRA engineering

review, in addition to any amount owed by the Defendant in accord with NCRA’s

standard recurring encroachment fee, or such other amount as may be determined by any

legal process, or as to any permanent licenses or easements, such amount as may be

negotiated between the parties for the continued maintenance of such encroachments.

The Willits North Lease obligation has not been adjusted for CPI since 2001; the Mile

Post Marker Rental Amounts have not been CPI adjusted since 1996.

Fiber Optic Line

The greater of the annual rental value of the property, or the value of the benefits

obtained for the wrongful occupation of the property, both alternatives for the five years next preceding the filing of the complaint. Fiber Optic Cable- length x $6.00 per lineal foot for License, or $1.20 per lineal foot as annual rental of the occupied property the later calculated on an amortized basis using an amortized value of five years; or such other amount that might be adjudicated as being the reasonable rental value , or the value of the benefits obtained by Defendant for the wrongful occupation by reason of that wrongful occupation. The length of the fiber optic cable is unknown assumed to extend the entire distance between Willits and Healdsburg a distance of 394,838.4 lineal feet. The fiber optic line was encountered at seventeen specific mile post markers,: 71.61 75.699, 75.763; 75.799; 76.145; 78.178; 80.929; 81.078; 84.461; 100.064; 100.386; 100.027; 101.111; 100.028; 101.452; 110.689; 100.798;The value for the benefits obtained is presently unknown to the Plaintiff, but known to the Defendant.

Willits North Lease Obligation

Lease Obligation MP 144-275 $78,006 for current year and 2012, 2013, 2014 and 2015

calculated at $15,600 per year CPI adjusted to December 31, 2001, with further CPI

adjustment to the time of trial

Encroachment annual rentals by Mile Post Marker

The references to the 1959 Agreement reflect licenses perfected by Defendant pursuant

to an agreement with Southern Pacific Railroad Company pursuant to the terms of that

agreement. NCRA does not recognize that the agreement binds the NCRA, or has ever

bound the NCRA, but in the exercise of discretion is not currently seeking damages for

those licenses arranged between Defendant and Southern Pacific Railroad Company,

without waiving the right to do so. The identity of those licenses is set forth with the

notation, “1959 Agreement.” For those instances, were NCRA to claim damages before

or at trial, and for those instances where there is no reasonable argument for perfection under the 1959 agreement the calculation would be $2000 per year for each commercial utility crossing times five years, the maximum throwback period for damages for wrongful occupation.

67.39 $2000 per year x 5years $10,000

68.53 $2000 per year x 5years $10,000

70.0 1959 Agreement $10,000

70.16 1959 Agreement -0-

70.20 $145 per yr x 4 $ 580

70.683 1959 Agreeement. -0-

70.863 $2000 per year x 5 years $10,000

71.65 1959 Agreement -0-

72.122 $2000 per year x 5years $10,000

72.122 $2000 per year x 5 years $10,000

73.17; 74.25, 75.09, 75.97- 1959 Agmt -0-

71.23 71.32 71.97 –1959 Agmt. -0-

73.0 1 959 Agreement -0-

73.824 $2000 per year x 5 $10,000

74.86 - 1959 Agmt -0-

75.58 - 1959 Agmt -0-

78.824 1959 Agreement -0-

74.787 $2000 per year, x 5years $10,000

75.80 $114 per year, x 4 years $ 456

75.799 $2000 per year x 5years $10,000

76.12 aerial crossing $2000 per year x 5years $10,000

76.149 aerial crossing $2000 per year, x 5years $10,000

76.12 aerial crossing $2000 per year, x 5years $10,000

79.16 6276/1959 Agmt. -0-

80.90 $100 per year x 4 $ 400

81. 259 $2000 per year x 5years $10,000

81.302 $2000 per year, x5years $10,000

81.356 $2000 per year x 5 years $10,000

82.575 Phone Line Crossing $2000 per year, x 5years $10,000

83.48 1959 Agreement -0-

85. $2000 per year x 5years $10,000

85. 429 $2000 per year, x 5years $10,000

86.49 $2000 per year, x 5years $10,000

97. (2 aerial crossings)* $20,000

99.923 $2000 per year x 5years $10,000

100.128 $2000 per year x 5years $10,000

100.028 $2000 per year,x5years x4drops $40,000

100.31 $2000 per year, x5years $10,000

100.064 $2000 per year, x 5years $10,000

104.057 $2000 x 4 $10,000

105. 115 $2000 per year, 5years $10,000

105.759 $2000 per year, 5years $10,000

100.796 $2000 per year, 5years $10,000