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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet

Nov-22-2013 3:33 pm

Case Number: CGC-13-528312

Filing Date: Nov-22-2013 3:32
Filed by: SHAWNA VANTREE
Juke Box: 001

Image: 04287012

ORDER

CALIFORNIA-AMERICAN WATER COMPANY, A CALIFORNIA CO VS. MARINA

COAST WATER DISTRICT et al

001C04287012

Instructions:
Please place this sheet on top of the document to be scanned.

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BY: ___:;_~~-: .........
CLEf-~f:,

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

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CALIFORNIA-AMERICAN WATER CO.,
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Case No. CGC- 13-528312

Plaintiff,
vs.
MARINA COAST WATER DISTRICT, ET
AL.,
Defendants.

AND RELATED CROSS ACTIONS

ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO STAY
ACTION ON GOVERNMENT CODE
SECTION 1090 ISSUES
AND
CASE MANAGEMENT ORDER FOR
NOVEMBER 15,2013

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In this Order I treat the motion brought by Marina Coast Water District for a stay, heard

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November 15, 2013. I also then address issues discussed at the case management conference and

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the related joint case management conference statement.

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A. Motion For Stay

Marina Coast Water District's motion for a stay is premised on the unavailability of

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Stephen Collins, who has been charged with criminal conduct and asserts his rights under the
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Fifth Amendment. His criminal trial is set for January 27, 2014.

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The matter of a stay is one of discretion, based on a variety of practical factors. Bains v.

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Moores, 172 Cal.App.4 445 (2009); Avant! Corp. v. Superior Court, 79 Cal.App.4 111 876

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(2000).
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The moving papers cite no issue to be tried in the Government Code 1090 bifurcated

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trial set for early next year as to which Collins' testimony is necessary. Plainly, his actions are

central to the issues, but Marina Coast has not demonstrated that the evidence is otherwise

unavailable. The moving papers suggest his "thought process" is relevant (Memorandum at 2)

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but that does not appear to be true: Marina Coast agrees that intent is not part of the trial. The
papers say his statements to others may be important, and I suppose they might be, but those

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others may so testify. Marina Coast does nothing to explain why "accomplices" (id.) are

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important, nor why anyone at the trial will care about the identity of "other officials who

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encouraged or discouraged him." Id. The moving papers argue "it is beyond cavil" that Collins

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is needed on the "formation and ... approval of the subject agreements," id., but cavil California-

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America does, and I still don't know why Collins's testimony is needed on that subject. Even

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the reply papers, which do suggest issues for Collins' testimony, fail. Marina Coast does not

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explain why it matters whether Collins resigned before or after final approval of the agreement,

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and why that information can only come from Collins. On the matter of Collins' impact on the
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Board, Marina Coast again does not explain why this matters in a 1090 case, and if it does,

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why those board members putatively affected (or not) cannot testify on the matter. Nor finally

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does Marina Coast tell me why Collins is the only, or even important, source for the unclean

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hands defense. At the hearing, Marina coast suggested that Collins' credibility on some issue

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But this is too late. The basis for relief must be provided in opening papers~else the opposing party has been
sand-bagged.
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will be important, in that he will contradict other testimony (presumably introduced by

California-America). But I could not discern what that issue was.

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The party charged with the burden of establishing the 1090 case, California-America,
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says it can prove its case without Collins. This too suggests (although it is not conclusive) that
Collins' testimony is not essential to a fair trial. 2

On the other side of the ledger are the parties' rights to an early determination, and the

court's responsibility to avoid delay. If Collins is convicted at trial and decides to appeal, the

final resolution of this case could be literally years away if we must wait for his testimony.

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In the end, because Marina Coast was unable to explain its need for a stay, I would deny

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the motion. However, for practical reasons discussed below, I will continue the trial date to a

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date past the likely end of Collins' criminal trial, which among other things may allow the parties

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to use his testimony if, for example, he is acquitted. This accounts for much of what Marina

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Coast sought in its motion.

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B. Case management and scheduling

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California-America has run into delays scheduling depositions and asks that its obligation

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to respond to the pending summary judgment motion be postponed. Marina Coast says none of
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those depositions is necessary because its motion presents purely legal issues. But of course I
cannot determine that now; were it true that Marina Coast could have raised the same issues by

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way of demurrer, as it says now, I suppose Marina Coast could have filed a motion for judgment

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on the pleadings. But as things are, it is fair to allow California-America to complete discovery

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in order to file its opposition to the summary judgment motion. This entails a delay of

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proceedings, dovetailing with Marina Coast's request for a stay discussed above.

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California-America filed a "Sur-Reply" without seeking leave of court. The filing is not authorized by the rules of
court or the Code of Civil Procedures. I have ignored it.

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New dates for Marina Coast's motion for summaryjudgment. The motion is currently set
for December 27, 2013. The hearing is continued to January 31,2014 at 10:00 a.m. Opposition

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papers are due January 5, 2014 and the reply papers are due January 16, 2014.

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Trial date continuances. The trial date is continued from February 3, 2014 to March 24,

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2014.

Issues to be decided. California-America has suggested modifications in the phraseology

of the questions to be decided in the March trial. I do not see material distinctions between those

and the wording I used in my October 10,2013 Order, and I will adhere to the wordings in that

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Order.

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Time estimates. I have serious concerns with the time estimates provided by Marina
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Coast, which (without Collins' testimony) include about 20 hours just on direct. First, the parties

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and I had in the past estimated about two trial days, that is, about 10 hours, for the entire phased

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trial, and secondly the topics discussed in Marina Coast's list are plainly cumulative; for

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example, most witness seem to be testifying on the same issues, "CPUC approval". I am likely

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to (a) set overall time limits for the presentations at trial, to be used as trial counsel see fit, and
(b) sustain objections when met with cumulative evidence. The matter will be revisited at the

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next case management conference (CMC). As a first step, Marina Coast must revise its time
estimates and present those at the next CMC.

Pretrial scheduling. As a result of the postponement of the trial the following dates are
modified from those set in the October 10, 2013 Order:
2014:
Parties exchange deposition designations: February 28

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Parties exchange deposition counter designations and objections: March 7
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Parties exchange exhibit lists and exhibits: March 7

File Motions in limine (MILs), if any: February 28

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File oppositions to MILs: March 7
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CMC, 3 hearing on MILs & final pretrial conference: March 17, 9:00a.m.

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File trial briefs: March 21

Trial: March 24

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Dated: November 15,2013

Curtis E.A. Karnow
Judge of The Superior Court

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The parties' joint CMC statement should express their views concerning the impact of Collins' criminal trial, time
limits, and any other matters which will expedite the trial.

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