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