Vectren Communications Services, Inc. v. City of Alameda

Filing 115

ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION re 89 . (SI, COURT STAFF) (Filed on 12/28/2009)

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VECTREN COMMUNICATION SERVICES, INC., an Indiana corporation, Plaintiff, v. CITY OF ALAMEDA, acting by and through Alameda Power & Telecom, Defendant. / No. C 08-3137 SI ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Plaintiff has moved for reconsideration of the portion of the Court's August 18, 2009 summary judgment order in which the Court found as a matter of law that defendant did not have a duty under the 2004 Installment Sale Agreement ("ISA") or the implied covenant of good faith and fair dealing to consider and add voice services. After review of the parties' papers, the Court agrees with plaintiff that summary judgment on this issue was not proper, as there are triable issues of fact as to the parties' intent regarding whether 6.2 or 6.3 of the ISA governs the improvement of adding voice services. The Court also agrees with plaintiff that if 6.2 governs, the City was required to exercise its discretion under 6.2 (to make additions, modifications and improvements to the Telecom system) in good faith, see Locke v. Warner Bros. Inc., 57 Cal. App. 4th 354, 366-67 (1997), and that this question of fact is not suitable for summary judgment. The Court also finds that the motion for reconsideration is procedurally proper. The distinctions raised by plaintiff in the motion for reconsideration were not addressed in the summary judgment briefing, and only first raised at oral argument. The Court has benefitted from a fuller discussion of this matter. 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, the Court GRANTS plaintiff's motion for reconsideration. (Docket No. 89). IT IS SO ORDERED. Dated: December 28, 2009 SUSAN ILLSTON United States District Judge 2

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