Vectren Communications Services, Inc. v. City of Alameda Ex Rel. Alameda Power & Telecom

FILED

NOT FOR PUBLICATION AUG 02 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VECTREN COMMUNICATIONS No. 11-15992 SERVICES, INC., an Indiana corporation, D.C. No. 3:08-cv-03137-SI Plaintiff - Appellant,

v. MEMORANDUM*

CITY OF ALAMEDA, acting by and through Alameda Power & Telecom,

Defendant - Appellee.

VECTREN COMMUNICATIONS No. 11-16003 SERVICES, INC., an Indiana corporation, D.C. No. 3:08-cv-03137-SI Plaintiff - Appellee,

v.

CITY OF ALAMEDA, acting by and through Alameda Power & Telecom,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Susan Illston, District Judge, Presiding

Argued and Submitted January 18, 2013 San Francisco, California

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

Plaintiff Vectren Communications Services, Inc. (Vectren) appeals from a

judgment of the district court…

MEMORANDUM *

Plaintiff Vectren Communications Services, Inc. (Vectren) appeals from a judgment of the district court in favor of the City of Alameda (City) involving contract claims governed by California law. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part, reverse in part, and remand.

The jury found in favor of Vectren on its claims that the City had breached the contract by failing to offer voice service (voice claim), by selling the telecommunications system (sale claim), and by using improper accounting methods (accounting claim). However, the jury further found that the sale claim was barred by Vectren’s failure to comply with a statutory one-year notice requirement, see Cal. Gov’t Code § 911.2(a), and that Vectren had waived the claim. The jury also found that Vec-tren’s failure to comply with the one-year notice requirement barred the voice claim.

1. The district court’s application of the one-year notice requirement was based on its holding that the California Government Claims Act (Act) applies to Vectren’s claims against the City. We agree with the district court that the Act applies here. Under Artz Builders v. City of Berkeley, where |…

concurring in part and dissenting in part:

I concur with the majority’s holding that the district court erred in denying Vec-tren’s Rule 50(b) motion on the City’s waiver and notice defenses to the sale claim. However, I disagree that the Government Claims Act (Act) applies to Vec-tren’s voice and accounting claims.

The majority holds that because the claims process in Section 9 of the contract between Vectren and the City is not as detailed or comprehensive as the contractual process in Amtz, and because Section 9 contemplates that the notice requirements imposed by “other law” apply to the parties, we should not hold that the Act is supplanted by the contract. I disagree with both points.

Amtz did not actually analyze whether the parties’ contract contained a claims procedure — it simply proceeded as though that question was undisputed. Thus, Amtz did not specify what the bare minimum requirements are for a contractual claims process that would trigger that rule, nor did it state that the contract at issue there was the standard by which to judge. While certainly a claims process that was similar to Amtz would qualify, we *685 cannot use that case to reject a contractual…