Pacific West Cable Co. v. City of Sacramento, Cal.
| Decision Date | 13 August 1987 |
| Docket Number | Civ. No. S-83-1034 MLS. |
| Citation | 672 F. Supp. 1322 |
| Parties | PACIFIC WEST CABLE COMPANY, Plaintiff, v. CITY OF SACRAMENTO, CALIFORNIA, a municipal corporation; and County of Sacramento, California, a municipal corporation, Defendants. |
| Court | U.S. District Court — Eastern District of California |
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Harold R. Farrow, Robert M. Bramson, Siegfried Hesse, Farrow, Schildhause & Wilson, Oakland, Cal., Richard Alexander, The Boccardo Law Firm, San Jose, Cal., for plaintiff.
Michael A. Small, Kathleen M. McGinnis, Preston, Thorgrimson, Ellis & Holman, Seattle, Wash., W. Young, K. Broerick, Preston, Thorgrimson, Ellis & Holman, Washington, D.C., James Jackson, Sacramento City Atty., L.B. Elam, Deputy County Counsel, Sacramento County, Sacramento, Cal., for defendants.
Stephen L. Goff, Boutin, Lassner, Gibson, Terry & Delehant, Sacramento, Cal., for amicus curiae.
Jury trial of this action commenced on March 23, 1987. After 29 days of trial, the matter was submitted to the jury on June 3 on a series of special verdicts. The jury returned twenty-two of the special verdicts on June 5. After entering those verdicts, the court asked the jury to continue deliberating on the remaining special verdicts. On June 9, the jury notified the court that it had reached unanimous agreement on eight of the special verdicts but were hopelessly deadlocked on the remaining five verdicts. The court accepted and entered the additional eight verdicts and then discharged the jury.
The court conducted one additional hearing and received two sets of briefs (one prior to the hearing and one after) on the issue of the proper judgment, if any, to be entered on the special verdicts. The matter has now been submitted. The following constitutes the court's judgment, including its analysis and conclusions, on the jury's special verdicts and in response to plaintiff's request for injunctive relief.
In November of 1981, the Sacramento City Council and County Board of Supervisors enacted substantially identical cable television2 ordinances (the "cable television ordinance"). The ordinance established the exclusive procedure for awarding cable television franchises. Under the cable television ordinance, any such franchise is deemed to constitute a contract between the franchisee and the Sacramento Metropolitan Cable Television Commission (the "cable commission"), which is a joint powers authority formed pursuant to California law by defendants and two other cities. Furthermore, the possession of a franchise is a requirement for access to utility easements and underground conduits in Sacramento.
Pursuant to the provisions of the cable television ordinance, a request for proposals for the award of a cable television franchise within the city and county was issued. Defendants received four proposals. After conducting various meetings and hearings on the proposals and considering the reports prepared by the consultant retained by the county, defendants selected a firm called United Tribune Cable of Sacramento as the tentative franchisee.
Further public hearings, meetings and negotiations ensued on the precise terms and conditions of the franchise to be awarded United Tribune. However, when defendants passed resolutions offering the franchise to United Tribune, it declined to accept the offer. As a result, defendants issued a second request for proposals in July of 1983.
In August 1983, plaintiff, Pacific West Cable Company, was formed as a partnership by and between Joseph Benvenuti and D. Bruce Fite. A representative of plaintiff thereafter paid for and obtained business licenses from defendants in the name of Pacific West Cable Group. Those licenses indicate that the nature of the licensee's business is cable television. Also in August 1983, a representative of plaintiff had conversations with Pacific Telephone and Telegraph Company concerning pole attachment services; the representative also had conversations with one or more of defendants' employees and with a representative of the cable commission concerning authorization to build and operate a cable television system.
In September, plaintiff responded to the request for proposals with a five-page letter in which it requested all of the necessary licenses to operate and construct a cable television system in Sacramento. Plaintiff expressed its willingness to comply with "lawful police power regulations," but refused to tender the non-refundable filing fee. Unlike the other four firms responding to the request for proposals, each of which submitted voluminous information about itself and its proposed system, plaintiff provided only minimal information about its identity, financial resources and proposed programming.
Defendants held additional meetings and public hearings. The cable commission issued a preliminary report concerning the four proposals submitted in response to the July 1983 request for proposals and the letter from plaintiff's attorney. After one or more additional hearings, the cable commission issued its final report. Shortly thereafter, defendants offered a cable television franchise to Cablevision of Sacramento,3 which offer was accepted.
On or after December 8, 1983, defendants received a letter from plaintiff concerning the issuance of an additional cable franchise. The city attorney and county counsel responded by letters dated January 25, 1984 and February 1, 1984, respectively. Plaintiff's attorney responded to those letters on February 24, 1984. The city attorney and county counsel answered by letters dated March 30, 1984 and April 6, 1984, respectively.
When defendants persisted in their refusal to issue plaintiff a cable television franchise, plaintiff filed suit on September 9, 1983, alleging that defendants' refusal to issue it a franchise violated the first and fourteenth amendments to the United States Constitution, sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and article I, section 2 of the California Constitution.
Plaintiff moved for a preliminary injunction that would have allowed it to lay its conduit along with the cables being laid by the franchisee. The motion was denied on the ground that plaintiff had failed to show irreparable injury. See Pacific West Cable Co. v. City of Sacramento, 762 F.2d 1018 (9th Cir.1985) (mem.) (affirming denial). Plaintiff also moved for a second preliminary injunction to enjoin defendants from denying it the opportunity to build and own a cable television system; this motion was also denied. See Pacific West Cable Co. v. City of Sacramento, California, 798 F.2d 353 (9th Cir.1986) (affirming denial).
Finally, the court dismissed plaintiff's antitrust claims for failure to state a claim upon which relief may be granted. See Preferred Communications v. City of Los Angeles, 754 F.2d 1396, 1411-15 (9th Cir. 1985), aff'd on other and narrower grounds, 474 U.S. 979, 106 S.Ct. 380, 88 L.Ed.2d 333 (1986).
At the close of evidence and final argument, the case was submitted to the jury on general instructions and eighteen special verdicts (many of which had several subparts). See Fed.R.Civ.P. 49(a).4 The court used special verdicts over the objection of plaintiff, which argued that it was entitled to a general jury verdict and instructions on the law.
There were several advantages to using special verdicts in this case. The general verdict is usually either all wrong or all right because it is an inseparable and inscrutable unit. 5A Moore's Federal Practice ¶ 49.02 (2d ed. 1986) (quoting Sunderland, Verdicts, General and Special, 29 Yale L.J. 253, 259 (1920)). Special verdicts, on the other hand, isolate fact findings in such a way as to allow reviewing courts to make determinations as a matter of law while preserving the jury's role as a fact finder. Brown, Federal Special Verdicts: the Doubt Eliminator, 44 F.R.D. 338, 346-48 (1967).
For this reason, special verdicts are a valuable tool when the law is uncertain or in a state of development; special verdicts minimize the need for, and scope of, a new trial in the event of an error of law or a misapplication of law to the facts. Id. at 342, 348; see also Wright and Miller, Federal Practice and Procedure, § 2505 at 494-95 (1971); Wright, The Use of Special Verdicts in Federal Court, 38 F.R.D. 199, 202 (1965). The Second Circuit endorsed the use of special verdicts in Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980):
We note en passant, however, that in large and complex cases such as this, involving many novel legal issues, the better practice would have been to require special verdicts or the submission of interrogatories to the jury pursuant to Fed.R.Civ.P. 49. In that way the right to a jury trial of all factual issues is preserved while the probability of a laborious and expensive retrial is reduced. See SCM Corp. v. Xerox Corp., 463 F.Supp. 983, 988-90 & nn. 13, 15 (D.Conn.1978), remanded on other grounds, 599 F.2d 32 (2d Cir.1979). Certainly the already difficult task of reviewing a case of this magnitude would have been eased somewhat for this court if we knew precisely what the jury's findings were on several specific factual issues.
Id. at 279; see also Envirex, Inc. v. Ecological Recovery Associates, Inc., 454 F.Supp. 1329, 1339-40 (M.D.Pa.1978), aff'd, 601 F.2d 574 (3d Cir.1979) (). The Ninth Circuit has also approved the use of special verdicts as facilitating its review for harmless error. See Pacific Greyhound Lines v. Zane, 160 F.2d 731, 737 n. 6 (9th Cir. 1947).
The court is especially concerned about the possibility of legal errors in this case inasmuch as the Supreme Court has explicitly...
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