USA v. Pacific Gas and Electric Company et al

Filing 56

STIPULATION and ORDER signed by Judge John A. Mendez on 8/29/11: Stipulation re MOTIONS in limine APPROVED.(Kaminski, H)

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RANDY W. GIMPLE [Bar No.: 129705]
A.DAVID BONA [Bar No.: 209605]
BRITTANY DEJONG [Bar No.: 258766]
CARLSON, CALLADINE & PETERSON LLP
353 Sacramento Street, 16th Floor
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
DAVEY TREE SURGERY COMPANY

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353 SACRAMENTO STREET
16TH FLOOR
San Francisco, CA 94111

CARLSON CALLADINE & PETERSON LLP

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ROBERT M. BLUM [Bar No. 083302]
NIXON PEABODY LLP
One Embarcadero Center, 18th Floor
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
DAVEY TREE SURGERY COMPANY
MICHAEL R. WEINSTEIN [Bar No. 106464]
LAW OFFICES OF FERRIS & BRITTON, APC
401 West A Street, Suite 1600
San Diego, CA 92101-7906
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
PACIFIC GAS & ELECTRIC COMPANY

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BENJAMIN B. WAGNER
United States Attorney
GLEN F. DORGAN
Assistant United States Attorney
United States Courthouse
2500 Tulare Street, Suite 4401
Fresno, California 93721
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plainiff
UNITED STATES OF AMERICA

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
Plaintiff,

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vs.
PACIFIC GAS & ELECTRIC COMPANY,
DAVEY TREE SURGERY COMPANY, and
THE DAVEY TREE EXPERT COMPANY,
Defendants.

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No. 2:09-cv-02868-JAM-JFM
STIPULATION AND ORDER IN LIMINE

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STIPULATION AND ORDER IN LIMINE

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CASE NO.: 2:09-CV-02868-JAM-JFM

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IT IS HEREBY STIPULATED that
1. The following facts are undisputed.
a. On October 13, 2004, the Freds Fire ignited on National Forest System lands near

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Kyburz, California adjacent to or under a PG&E 21,000 volt (21 KV) power line on or near the

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transmission line easement, within the Eldorado National Forest.

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b. PG&E contracted with Davey Tree for vegetation management services.

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c. On the day of the fire, Davey Tree and its employees were performing removal and

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trimming of designated trees as vegetation management contractor for PG&E.
d. The fire ignited during Davey Tree employee’s removal of a tree between about

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4:00 p.m. and 5:00 p.m.
e. About 4:20 p.m. on October 13, 2004, a large tree the Davey Tree employees were

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353 SACRAMENTO STREET
16TH FLOOR
San Francisco, CA 94111

CARLSON CALLADINE & PETERSON LLP

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cutting fell the opposite way it was intended to fall and it landed on the PG&E power lines causing

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them to break.

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f. The tree knocked the energized power line to the ground causing the fire.

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g. Acts or omissions of Davey Tree employees during the tree removal led to the

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ignition of the fire.
2.

The only evidence or argument before the jury regarding the cause of Freds Fire,

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Defendants’ liability for Freds Fire, Pacific Gas & Electric Co.’s delegation of vegetation

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management work to Davey, the qualifications and/or training of Davey employees and the

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conduct of Davey employees on the day of the fire shall be the above-listed facts and the

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undisputed facts contained in the pretrial conference order.

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3.

Plaintiff hereby withdraws any claim to prejudgment interest under California Civil

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Code section 3288, which provides that the jury has discretion to award prejudgment interest. The

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parties stipulate that Plaintiff’s right to recover prejudgment interest, if such a right exists, shall be

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decided by the Court after the jury reaches a verdict. All evidence and argument concerning any

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claim or alleged right of Plaintiff to recover prejudgment interest, any loss by Plaintiff with

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respect to the time-value of income, and any claim or alleged right to recover statutory or

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regulatory penalties will be presented to the court outside the presence of the jury.
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CASE NO.: 2:09-CV-02868-JAM-JFM

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Plaintiff’s claimed right to recover double damages for timber pursuant to

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California Civil Code section 3346, which Defendants dispute, is a legal issue and shall be decided

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by the court after the jury returns a verdict. All evidence or argument regarding any claim or

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alleged right of Plaintiff to recover any multiplier on the value of trees shall be excluded in the

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presence of the jury.

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Based upon the parties’ foregoing stipulation, IT IS HEREBY ORDERED
Plaintiff’s requested Motion in Limine No. 1 to admit as established those facts identified

judgment motion is granted in part. The foregoing stipulated facts (a) through (g) are deemed

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established. All other facts identified as material and undisputed in the order granting Plaintiff’s

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353 SACRAMENTO STREET
16TH FLOOR
San Francisco, CA 94111

by the Court as material and undisputed in the order granting Plaintiff’s interlocutory summary

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CARLSON CALLADINE & PETERSON LLP

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interlocutory summary judgment motion are excluded.

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Plaintiffs requested Motion in Limine No. 9 to exclude any evidence or argument

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concerning Plaintiff’s interest claim to the extent such claim rests with the discretion of the Court

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is granted pursuant to the foregoing stipulations regarding prejudgment interest.

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Defendants’ Motion in Limine No. 1 to exclude all evidence or argument regarding the

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cause of the fire is granted in part. The foregoing stipulated facts (a) through (g) and the

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undisputed facts contained in the pretrial conference order are admissible. All other evidence or

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argument regarding the cause of the fire shall be excluded.

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Defendants’ Motion in Limine No. 2 to exclude all evidence or argument regarding PG&E

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delegating vegetation management work to Davey, the qualifications and/or training of Davey

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employees, or the conduct of Davey employees on the day of the fire is granted in part. The

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foregoing stipulated facts (a) through (g) and the undisputed facts contained in the pretrial

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conference order are admissible. All other evidence or argument regarding PG&E delegating

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vegetation management work to Davey, the qualifications and/or training of Davey employees, or

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the conduct of Davey employees on the day of the fire shall be excluded.

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CASE NO.: 2:09-CV-02868-JAM-JFM

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Defendants’ Motion in Limine No. 4 to exclude all evidence or argument regarding the

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heroism of any firefighters or agencies who or which attempted to suppress the fire is stipulated to

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by the parties and hereby granted.

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Defendants’ Motion in Limine No. 8 to exclude all evidence or argument regarding any

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other fires allegedly or actually caused by any defendant is stipulated to by the parties and hereby

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granted.

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Defendants’ Motion in Limine No. 11 to exclude all evidence or argument regarding any

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alleged reduction in public visitation or use of the Eldorado National Forest as a result of the fire

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is stipulated to by the parties and hereby granted. The parties further stipulate that all evidence
regarding any increase in public visitation or use of the Eldorado National Forest as a result of the

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fire shall also be excluded.

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353 SACRAMENTO STREET
16TH FLOOR
San Francisco, CA 94111

CARLSON CALLADINE & PETERSON LLP

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Defendants’ Motion in Limine No. 12 to exclude all evidence or argument regarding any

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damage to “Heritage Resources,” including but not limited to the Pony Express trail is stipulated

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to by the parties and hereby granted. Defendants’ motion, and this order in limine, does not

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pertain to any evidence or argument regarding any damage to habitat, the environment, trees, or

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claims related to “intangible” damages.

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Defendants’ Motion in Limine No. 13 to exclude all evidence or argument regarding any

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loss of the carbon-sequestration capacity of the forest as a result of the Freds Fire, including any

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alleged link between forest fires and global warming or green house gases is stipulated to by the

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parties and hereby granted.

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Defendants’ Motion in Limine No. 14 to exclude all evidence or argument regarding any

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potential damage or loss to the yellow-legged frog or its habitat as a result of the Freds Fire is

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stipulated to by the parties and hereby granted.

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Defendants’ Motion in Limine No. 15 to exclude all evidence or argument regarding any

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claim or alleged right of Plaintiff to recover any statutory or regulatory penalties against

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defendants for failing to pay claims presented by Plaintiff as a result of the fire is granted pursuant

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to the foregoing stipulations regarding prejudgment interest.

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CASE NO.: 2:09-CV-02868-JAM-JFM

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Defendants’ Motion in Limine No. 16 to exclude all evidence or argument regarding any

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claim or alleged right of Plaintiff to recover prejudgment interest or regarding any loss by Plaintiff

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with respect to the time-value of income is granted pursuant to the foregoing stipulations

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regarding prejudgment interest.

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Defendants’ Motion in Limine No. 17 to exclude all evidence or argument regarding any

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claim or alleged right of Plaintiff to recover any multiplier on the value of trees is granted pursuant

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to the foregoing stipulation regarding California Civil Code section 3346.

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attorney time or fees incurred by any attorney in the prosecution or defense of this case is
stipulated to by the parties and hereby granted.
Defendants’ Motion in Limine No. 19 to exclude any evidence or argument regarding the

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353 SACRAMENTO STREET
16TH FLOOR
San Francisco, CA 94111

CARLSON CALLADINE & PETERSON LLP

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Defendants’ Motion in Limine No. 18 to exclude all evidence or argument regarding

fact that defense counsel is not from the Sacramento area is stipulated to by the parties and hereby

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granted. The parties further stipulate that all evidence or argument regarding the fact that any

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counsel is not from the Sacramento area shall be excluded.

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DATED:

CARLSON, CALLADINE & PETERSON LLP

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By: /s/ Randy W. Gimple
RANDY W. GIMPLE
A.DAVID BONA
Attorneys for Defendant, DAVEY TREE SURGERY
COMPANY

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DATED:

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NIXON PEABODY LLP
By:

/s/ Robert M. Blum
ROBERT M. BLUM
Attorneys for Defendant,
DAVEY TREE SURGERY COMPANY

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DATED:

BENJAMIN B. WAGNER
United States Attorney
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CASE NO.: 2:09-CV-02868-JAM-JFM

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By: /s/ Glen F. Dorgan
GLEN F. DORGAN
Attorneys for Plaintiff
UNITED STATES OF AMERICA

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DATED:

FERRIS & BRITTON,
A PROFESSIONAL CORPORATION

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By: /s/ Michael R. Weinstein
MICHAEL R. WEINSTEIN
Attorneys for Defendant
PACIFIC GAS AND ELECTRIC COMPANY

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IT IS SO ORDERED.

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Dated: August 29, 2011

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353 SACRAMENTO STREET
16TH FLOOR
San Francisco, CA 94111

CARLSON CALLADINE & PETERSON LLP

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/s/ John A. Mendez ____________

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HON. JOHN A. MENDEZ
U.S. DISTRICT COURT JUDGE

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CASE NO.: 2:09-CV-02868-JAM-JFM

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