City of Rancho Palos Verdes v. Indian Peak Properties CA2/7 ( 2021 )

Filed 11/16/21 City of Rancho Palos Verdes v. Indian Peak Properties CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CITY OF RANCHO PALOS B303638
VERDES,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 18STCV03781)
v.
INDIAN PEAK PROPERTIES,
LLC,
Defendant and Appellant.
APPEAL from a judgment and postjudgment order of the
Superior Court of Los Angeles County, Monica Bachner, Judge.
Reversed and remanded with directions.
Bradley & Gmelich, Barry A. Bradley and Dawn Cushman
for Defendant and Appellant.
Aleshire & Wynder, William W. Wynder, June S. Ailin and
Alison S. Flowers for Plaintiff and Respondent.
__________________________
Indian Peak Properties, LLC appeals the judgment entered
in favor of the City of Rancho Palos Verdes in the City’s lawsuit
to abate a public nuisance. Indian Peak contends the trial court
in granting the City’s motion for summary judgment misapplied
the legal standard for proving a public nuisance and, in any
event, triable issues of material fact exist as to the elements of
each of the City’s three nuisance causes of action and Indian
Peak’s defenses to them. Indian Peak also argues the court
abused its discretion by failing to stay the City’s nuisance action
pending finality of the decision in Indian Peak’s related
mandamus action challenging the City’s revocation of the
conditional use permit authorizing Indian Peak to operate
commercial antennae on a residential property. Finally, Indian
Peak appeals the postjudgment order awarding the City attorney
fees as the prevailing party in the action.
We agree the court erred in granting summary adjudication
as to one of the three causes of action alleged in the City’s
amended complaint. Accordingly, we reverse the judgment with
directions and reverse as premature the postjudgment order
awarding attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
1. Indian Peak’s Conditional Use Permit, Notice of
Violation and Revocation
The City has a municipal ordinance that regulates the
installation and operation of commercial antennae. (Rancho
Palos Verdes (RPV) Mun. Code, § 17.76.020, subd. (A).) Indian
Peak is in the business of providing commercial and
noncommercial radio communications.
2
On June 21, 2001 James Kay, Jr. (Indian Peak’s principal
and its predecessor in interest) applied for a conditional use
permit authorizing the use for commercial purposes of what he
described as preexisting noncommercial amateur antennae on the
roof of residential property he owned on Indian Peak Road,
Rancho Palos Verdes.1 At that time there was a horizontal
antenna rack mounted on the roof with five vertical antenna
masts for the reception and transmission of radio and Internet
signals; each mast had four radiating elements. There were also
two television antennae on the roof.
The City issued the permit (CUP 230), which, after
two proceedings in federal court, ultimately authorized the
antenna array as configured in 2001. The resolutions concluding
this phase of the parties’ ongoing dispute required approval by
the city council of an amendment to CUP 230 for any “future
changes to the location or configuration or which increase the
1 The evidence before the trial court on summary judgment
concerning the controversy between Indian Peak and the City
over Indian Peak’s installation and operation of the antennae,
which culminated in the revocation of Indian Peak’s conditional
use permit on August 21, 2018, was essentially identical to the
evidence presented in support of and opposition to Indian Peak’s
petition for a writ of administrative mandamus, the subject of
Indian Peak’s appeal in Indian Peak Properties, LLC v. City of
Rancho Palos Verdes (Nov. 16, 2021, B303325) [nonpub. opn.].)
On July 15, 2021, although denying Indian Peak’s motion to
formally consolidate that appeal with this appeal from the
judgment in the nuisance action, we advised the parties we would
consider the two matters concurrently for purposes of decision.
Accordingly, in this opinion we omit some of the history of the
dispute, which is described in detail in our opinion in B303325.
3
number or the height of any approved antennae or element” of
the original antenna array.
The City received a complaint in August 2014 (nine years
after the final resolution modifying CUP 230) regarding the
number of commercial antennae on the roof of the property.
The City inspected the property and discovered there were now at
least 11 vertical antennae (or antenna masts) and other
equipment on the roof. On August 15, 2014 the City mailed
Indian Peak a notice it was in violation of the provisions of
CUP 230 and directed Indian Peak to “[r]emove all but five of the
vertical antennae from the roof, and ensure the remaining
five antennae meet the requirements as described” in CUP 230 or
“[s]ubmit an application to the City, with the required fee, to
request a revision to Conditional Use Permit No. 230 to allow the
existing antennae to remain.”
During the remainder of 2014 the City conducted
additional inspections of the property, which confirmed that no
changes had been made. A second notice of violation was sent on
October 14, 2014, and a final notice on October 28, 2014. The last
notice warned, if the violations continued to exist and no revision
application was submitted, the matter would be referred to the
city attorney’s office. Counsel for Indian Peak asserted no
revision to CUP 230 was required for the operation of the
additional antennae.
Over the next three-plus years the City’s attorneys and
Indian Peak’s counsel exchanged letters regarding the additional
antennae, Indian Peak’s obligation to comply with CUP 230 and
the terms for an application to revise CUP 230. Of particular
significance for the issues raised in the City’s summary judgment
motion, on May 5, 2016 Indian Peak’s counsel proposed, as a
4
compromise, applying for a modification of CUP 230 under the
expedited, “over-the-counter” review procedure provided in RPV
Municipal Code section 17.76.020, subdivision (A)(12)(b), for new
antennae on existing towers (with a $500 filing fee), with
approval required only from the City’s director of community
development, rather than the full process for modification of a
residential conditional use permit. In a July 26, 2016 response
the City explained CUP 230 expressly required that any
additions to the antenna array be approved by the city council or
through a formal modification of the conditional use permit, so
the expedited process could not be used. However, the City
agreed to a lower fee for the application and authorized Indian
Peak to submit with its application only the information required
under the expedited process, rather than the more extensive
information required for an amendment to a conditional use
permit.
Indian Peak submitted an application for revision of
CUP 230 on October 28, 2016. On November 23, 2016 City staff
notified Indian Peak it had reviewed the application and “due to
missing information and/or inconsistencies between the project
plans and submitted application, it has been determined that the
application is incomplete.” City staff provided a detailed
summary of the items that needed clarification or amplification
and listed the additional information required. Counsel for
Indian Peak objected to the request, insisting it had provided all
the information required by the City’s July 26, 2016 letter.
The matter remained unresolved. Indian Peak did not
provide any additional information, and the City did not process
the revision application. On August 2, 2018 the City issued a
notice of public hearing to consider revocation of CUP 230
5
“because of the Installation of unpermitted antennas exceeding
the maximum of 5 Council-approved, roof-mounted antennae and
support pole masts.” The hearing was scheduled for August 21,
2018.
Indian Peak retained new counsel, who requested an
extension of time to respond to the notice and a continuance of
the revocation hearing. The request was denied.
Indian Peak’s counsel submitted a written response to the
notice, which stated Indian Peak was willing to work with the
City and requested an additional 60 days to provide the
documentation required for its application to revise CUP 230. At
the August 21, 2018 hearing Indian Peak’s counsel explained that
with additional time she expected Indian Peak would “work with
the City as far as removing some of the antennas but not all of
the antennas that have been placed on here since the issuance of
the original conditional use permit.” Following counsel’s
comments, a staff presentation and public testimony from
four neighbors, the city council voted to adopt resolution
no. 2018-61 revoking CUP 230 in its entirety, effective
immediately.
2. The City’s Lawsuit To Abate a Public Nuisance and
Indian Peak’s Petition for Writ of Administrative
Mandamus
On August 29, 2018 the City sent Kay a cease-and-desist
demand notice, explaining CUP 230 had been revoked because of
the installation of unpermitted roof-mounted antennae and
directed that “all antennae-related operations cease and desist,
and that all roof-mounted antennas must be removed from the
premises immediately.” The notice warned that noncompliance
would result in immediate enforcement action.
6
On November 5, 2018 the City filed its original complaint
in this action, alleging the existence of a public nuisance and
seeking its abatement. The complaint named as defendants
Indian Peak, Lucky’s Two Way Radio (a Nevada corporation) and
Kay, and alleged three causes of action for public nuisance and a
cause of action for violation of California’s unfair competition law
(Bus. & Prof. Code, § 17200 et seq.).
Indian Peak filed a complaint for damages and petition for
writ of administrative mandamus pursuant to section 1094.5 on
November 19, 2018. The writ causes of action sought to compel
the City to set aside its resolution revoking CUP 230 and either
hold a new public hearing providing Indian Peak with an
adequate opportunity to present a defense or determine Indian
Peak’s application for a revision to CUP 230 on the merits. In
support of the writ petition, Indian Peak argued it had been
denied due process and deprived of a fair hearing because its
counsel was not provided a reasonable opportunity to prepare
and present a defense. It also argued the City’s action in
revoking CUP 230 was arbitrary and capricious because the
restrictions imposed were prohibited (or preempted) by federal
law and the City had failed to consider the merits of its
application for a revision to CUP 230.
After Indian Peak demurred to the original complaint, the
City on February 13, 2019 filed the operative first amended
complaint to abate a public nuisance, which named only Indian
Peak as a defendant. The first cause of action alleged Indian
Peak maintained a public nuisance based on its installation and
operation of commercial antennae in violation of CUP 230, which
constituted a violation of the RPV Municipal Code. The second
cause of action alleged Indian Peak maintained a public nuisance
7
based on its operation of commercial antennae without an
approved conditional use permit, which violated a separate
provision of the RPV Municipal Code. The third cause of action
for maintaining a public nuisance, brought pursuant to Civil
Code sections 3479 and 3480 (mislabeled as provisions of the
Code of Civil Procedure), alleged the installation and operation of
commercial antennae by Indian Peak on its property “are
injurious to the public health, safety, and welfare and are so out
of harmony with community standards and permissible land use
to constitute a public nuisance and/or public nuisance per se.”
The City requested that Indian Peak be enjoined from installing
or operating any unpermitted antennae and ordered to abate all
conditions causing the nuisances described in the pleading. The
first amended complaint also requested an order that Indian
Peak pay all outstanding citations, fines and penalties and that
the City recover its costs of suit, including reasonable attorney
fees.
Indian Peak filed a verified answer on March 19, 2019.2
Among its 19 affirmative defenses Indian Peak alleged the City
had consented to its conduct and the operative complaint was
preempted by federal law.
2 Indian Peak’s verified answer contained a lengthy
“statement of facts,” including, as paragraph KK, that, “[s]ince
the City granted CUP No. 230, the only changes at the Subject
Property were the number and type of antennas mounted on the
horizontal support cross-arm. It is incorrect for the City to assert
that vertical antenna masts, or elements on those masts are
‘additional towers.’ There is only one tower and one horizontal
cross-arm support structure to which the vertical antenna masts
are attached.”
8
3. The City’s Motion for Summary Judgment; Indian
Peak’s Opposition and Request for a Stay of the Action
On March 26, 2019, one week after Indian Peak answered
the first amended complaint, the City moved for summary
judgment or, in the alternative, for summary adjudication. As to
its first two causes of action the City argued the evidence
established Indian Peak installed and operated antennae not
authorized by CUP 230, which violated RPV Municipal Code
section 17.060.080 and constituted a nuisance per se under
RPV Municipal Code section 1.08.010, subdivision (D), and
continued to operate the antennae after CUP 230 was revoked,
which violated RPV Municipal Code section 17.76.020,
subdivision (A), and also constituted a nuisance per se. As to its
third cause of action for maintaining a public nuisance in
violation of Civil Code sections 3479 and 3480, the City argued
the undisputed facts established Indian Peak’s operation of the
commercial antennae impaired the public’s use and enjoyment of
the surrounding properties.
As part of the evidence in support of its motion, the City
submitted the declaration of E. Lee Afflerbach, a
telecommunications engineer, whose company had been retained
by the City’s counsel to provide a technical review of the
equipment authorized by CUP 230 and the equipment currently
installed on Indian Peak’s property and to opine whether the
current equipment was the same as the equipment permitted by
CUP 230, a modification of that equipment or an addition to it.
In his declaration Afflerbach explained, “The five vertical
antenna ‘masts’ on the property at the time CUP No. 230 was
approved were vertical self-supporting antenna masts, each with
four (4) radiating elements. The ‘masts’ did not have a separate
9
support structure. These antennas were designed to transmit
and receive communication signals to and from hand-held and
vehicle-mounted radios.” According to Afflerbach, the original
five antenna masts were still on the property’s roof but had been
moved to a slightly different position. “In addition to these self-
supporting antenna masts, the property has eleven (11)
additional antenna masts. Attached to these 11 additional masts
are approximately fifteen (15) separate antennas. These
antennas have different functionalities from the antennas affixed
to the original five antenna masts. These antennas are designed
to provide wireless internet service provider signals. In addition
to these 11 antenna masts and 16 antennas, one (1) 4-foot-
diameter microwave dish has also been installed on the property
subsequent to the issuance of CUP No. 230. This dish is designed
to create a communications link between two specific locations.
None of these additional antennas is consistent with
CUP No. 230, nor could the antennas be considered as
modifications to the masts and antennas allowed by
CUP No. 230.”
Indian Peak filed an untimely opposition on June 21, 2019,
which did not address the merits of the City’s motion. Instead,
after explaining that the attorney with responsibility for the case
had unexpectedly left the law firm representing it, Indian Peak
requested a stay of the proceedings pending resolution of Indian
Peak’s mandamus action or, alternatively, a continuance of the
motion hearing for at least 50 days pursuant to Code of Civil
10
Procedure section 437c, subdivision (h),3 because of the need for
additional discovery to respond to the motion.4
Concurrently with its opposition memorandum Indian Peak
filed an ex parte application pursuant to California Rules of
Court, rule 3.1204 for an order staying the nuisance action or
continuing the summary judgment hearing or, alternatively, for
an order shortening time for the filing and hearing of a noticed
motion seeking a stay or continuance. The City opposed the
ex parte application. With respect to the requested stay of
proceedings due to the pendency of Indian Peak’s mandamus
action, the City emphasized that two of its three nuisance causes
of action did not depend on the revocation of CUP 230 and
pointed out that Indian Peak had filed its mandamus petition
and damage claims as an independent proceeding after the
nuisance lawsuit was filed, rather than as a cross-complaint, and
had made no effort to consolidate or relate the two actions. The
trial court granted the application in part, continuing the
summary judgment motion hearing eight weeks (to August 27,
2019).
On August 13, 2019 Indian Peak again applied ex parte to
continue the summary judgment hearing, this time for an
additional 45 days, to permit it to complete additional discovery
necessary for it to prepare its opposition memorandum and “to
determine and analyze what appears to be the adverse resolution
3 Statutory references are to this code unless otherwise
stated.
4 The trial court had previously granted the parties’
stipulated request to continue the hearing 21 days to allow
Indian Peak to depose the City’s director of community
development.
11
of the Administrative Mandamus Hearing in the companion case
pending between the parties.” 5 The application, not heard until
after Indian Peak had filed its opposition to the summary
judgment motion, was denied as moot.6
In its supplemental opposition papers filed August 13, 2019
Indian Peak argued the City had failed to present evidence
showing any condition on its property could be considered
injurious to public health or adversely affecting the public’s
enjoyment of life or property. In addition, Indian Peak argued
the City had not carried its burden of proof because it consented
to the original installation of the antennae and authorized Indian
Peak to submit a revision application concerning the additional
antennae. Indian Peak also requested a continuance of the
hearing because further discovery was required and the
mandamus action was still pending.7 Indian Peak filed objections
5 On August 9, 2019, two court days before Indian Peak’s
application, the superior court had issued its 10-page ruling
denying Indian Peak’s petition for writ of administrative
mandamus. Indian Peak noted in its application the ruling was
neither a judgment nor a final appealable order (because Indian
Peak’s damage claims remained pending).
6 The application could not be heard on August 13, 2019 in
Department 71, where the City’s nuisance case was pending, and
was submitted instead to Department 72. Rather than rule on
the merits, the court “on its own motion” continued the
application to August 20, 2019 in Department 71—one week after
Indian Peak’s deadline for filing its opposition papers under
section 437c, subdivision (b)(2).
7 Requesting a continuance of the summary judgment
hearing date, not a stay of the proceedings, Indian Peak asserted,
“There is no existing Order in the Mandamus Action and no
Order will become final for another 60 days, at the very least.
12
to numerous portions of the declarations submitted by the City in
support of its motion, including Afflerbach’s expert declaration.
The City filed a reply memorandum supporting its motion and
arguing further delay of the hearing was unjustified and the
additional discovery sought by Indian Peak was unnecessary.
At the hearing on August 28, 2019 the court granted Indian
Peak’s request to continue the matter, setting a new hearing date
of October 29, 2019. The court found persuasive Indian Peak’s
argument it needed certain additional discovery relating to its
contention the City’s code enforcement had been arbitrary, but
rejected other arguments it advanced.
Indian Peak submitted a second supplemental opposition
and supporting papers on October 16, 2019, which included a
request for a stay because the now-final judgment in the
mandamus action had been appealed to this court. In these
opposition papers Indian Peak argued the City had acted
arbitrarily and contrary to its custom and practice in revoking
CUP 230 and asserted its installation of federally protected,
exempt antennae was privileged. The City filed a supplemental
reply, which, in addition to responding to the substantive points
in Indian Peak’s papers, argued a stay of an action could not be
sought in an opposition memorandum and noted this court had
denied Indian Peak’s petition for a writ of supersedeas to stay the
City’s order revoking CUP 230 and related enforcement actions
pending determination of the mandamus appeal.
The summary judgment hearing was held on October 29,
2019. The court provided a tentative ruling, heard argument and
took the matter under submission. Ten days later (November 8,
Therefore, the lack of finality of the Mandamus Action compels a
continuance of this hearing.”
13
2019) Indian Peak filed a motion to abate and stay all
proceedings pending the appeal in the mandamus action. The
scheduled hearing date for the motion was March 3, 2020. The
following week Indian Peak applied without statutory notice to
stay the proceedings or, in the alternative, to specially set its
noticed motion to abate and stay for some time in December
2019. On the same day the court denied the application without
prejudice because it did not “meet the standards under California
Rules of Court.”
4. The Trial Court’s Order Granting Summary Judgment
The trial court granted the City’s motion for summary
judgment in a 17-page ruling issued November 20, 2019.
Addressing at the outset Indian Peak’s request for a stay of the
City’s nuisance action pending an appellate decision in Indian
Peak’s mandamus action, the court stated Indian Peak had failed
to demonstrate how the first cause of action for operating
commercial antennae in violation of CUP 230 was implicated by
Indian Peak’s challenge to the revocation of CUP 230 or how a
decision on the second cause of action based on the evidence
before the court and in a manner that did not conflict with the
superior court’s denial of Indian Peak’s petition would be
premature. Nonetheless, the court declined to rule on the request
because, by making it in its supplemental opposition papers,
rather than a noticed motion, Indian Peak had not given the
parties an opportunity to fully brief the issues and present
evidence in support of and opposition to the proposed stay.
14
Turning to the merits of the City’s motion, 8 as to the first
cause of action, installation and operation of commercial
antennae in violation of the existing conditional use permit, the
court ruled the City had provided evidence (which the court
summarized) that Indian Peak had violated the conditions of
CUP 230, constituting a nuisance per se, and that Indian Peak,
with the burden shifted to it, had failed to demonstrate a triable
issue of material fact as to the elements of the City’s case or any
defense to it.9 The court explained the federal
Telecommunications Act of 1996 (TCA) (Pub.L. No. 104-104
(Feb. 8, 1996) 110 Stat. 56), which Indian Peak asserted
exempted its installation of antennae from local enforcement
action, does not preclude a city from regulating personal wireless
service facilities. Instead, the court continued, it prohibits
regulation that unreasonably discriminates among providers of
personal wireless services or has the effect of prohibiting the
provision of those services, citing title 47 United States Code
section 332(c)(7). Although Indian Peak claimed the City had
unreasonably discriminated against it by determining it had
violated CUP 230 and initiating enforcement proceedings based
on a single complaint and without determining the function of its
8 The court overruled all of the multiple evidentiary
objections filed by Indian Peak to the City’s evidence and the
two objections to Indian Peak’s evidence filed by the City.
9 The court added that Kay, in his declaration in opposition
to the motion, admitted he had “‘added antenna to the subject
property’” since issuance of CUP 230 and had “explain[ed] the
purposes of the ‘additional antenna added’ as distinct from the
original five antennae. [Citation.] Accordingly, there is no
triable issue of material fact that antennae were added to the
property in violation of the provisions of CUP 230.”
15
additional antennae, the court found that none of the evidence
submitted by Indian Peak created a triable issue of fact as to
whether the City’s actions were discriminatory. Because the City
had determined Indian Peak’s revision application was
incomplete, the court reasoned, neither the failure of the City to
consider that application nor the length of time that revision
applications were pending from other providers without initiation
of enforcement action by the City constituted evidence of
discrimination. Noting the City’s first notice of violation was
given in August 2014, four years prior to the revocation hearing,
the court found Indian Peak had presented no evidence it was not
provided a reasonable opportunity to cure its violations of the
conditions of CUP 230.
The trial court also found Indian Peak had submitted no
evidence the City consented to the operation of the commercial
antennae, either by virtue of the provisions of the original
conditional use permit or through the exchange of correspondence
relating to submission of a revision application. Similarly, the
court found there was no evidence the City had failed to follow its
own custom and practice with respect to following up on the
incomplete revision application, but that, even if it had, that
failure was irrelevant to whether Indian Peak’s operation of
antennae violated the provisions of CUP 230.10 And the
10 Reviewing the evidence before it, the court explained the
City had followed up with Indian Peak multiple times regarding
its operation of additional antennae, the need for an amendment
to CUP 230 and the information necessary for a revision
application to be processed. There was no evidence the City’s
failure to contact Indian Peak after February 2018 when
promised (and necessary) supplemental materials were not
submitted violated its normal practice.
16
declaration submitted with Indian Peak’s opposition indicating
the provision of certain services would be adversely affected by
the City’s enforcement of its municipal code against Indian Peak
did not demonstrate any discriminatory action by the City.11
As to the second cause of action, operation of commercial
antennae without a valid conditional use permit, the City’s
evidence of the circumstances leading to the revocation of
CUP 230 and Indian Peak’s continued operation of the
commercial antennae following that revocation and the City’s
notice to cease and desist constituted sufficient evidence of a
nuisance per se. Again, the court found, Indian Peak failed to
demonstrate a triable issue of fact regarding the elements of the
cause of action or a defense to it. The same arguments and
evidence regarding the City’s purported discriminatory actions
advanced in response to the first cause of action failed as to the
second cause of action as well.
Finally, the court stated the City’s third cause of action
pursuant to Civil Code section 3479 was based on Indian Peak’s
11 Elaborating on this point when considering it in connection
with the City’s second cause of action, the court explained, “A
declaration from Defendant’s customer asserting that revoking
Defendant’s CUP would cause a decrease in that customer’s
ability to provide coverage for its own customers does not address
whether or how Plaintiff’s revocation (or enforcement of its
municipal code) was discriminatory or arbitrary. Absent any
evidence that Plaintiff otherwise has not revoked CUPs held by
entities that provide radio services that benefit the public
notwithstanding the CUP holder’s violation of the terms of the
CUP, Defendant’s evidence that revocation of Defendant’s CUP
may cause harm to its customer does not create a triable issue of
material fact as to whether Plaintiff’s revocation was
discriminatory or arbitrary.”
17
alleged violations of the City’s municipal code, as asserted in the
first two causes of action, and thus “appears to be duplicative” of
those causes of action “in that, provided that Plaintiff established
Defendant’s conduct is in violation of one or both of the
referenced code sections, and that Defendant has no defenses, it
has established nuisance per se. As such, it appears that if
Plaintiff prevails on either of the first two causes of action, it also
prevails on the instant cause of action.”
The court granted the City’s motion for summary judgment
and, “for appeal purposes only,” separately granted the motion for
summary adjudication as to the first, second and third causes of
action. Judgment was entered on December 5, 2019. Indian
Peak filed a timely notice of appeal on January 13, 2020.
5. The Postjudgment Award of Attorney Fees
Following entry of judgment the City on December 18, 2019
moved for an award of $114,220 in attorney fees as the prevailing
party in the action pursuant to Code of Civil Procedure
section 1033.5, subdivision (a)(10)(B); Government Code
section 38773.5, subdivision (b); and RPV Municipal Code
section 1.08.10, subdivision (D)(3).12 Indian Peak opposed the
12 Code of Civil Procedure section 1033.5, subdivision (a)(10)(B),
allows an award of attorney fees as costs when authorized by
statute. Government Code section 38773.5, subdivision (b),
authorizes a city, by ordinance, to provide for the recovery of
attorney fees by the prevailing party in any action to abate a
nuisance. RPV Municipal Code section 1.08.010, subdivision (D)(3),
in turn, provides, “The prevailing party in any proceeding
associated with a violation of the code, the abatement of a public
nuisance, or where a violation of any provision of the code has been
declared a public nuisance, shall be entitled to recovery of
attorneys’ fees incurred in any such proceeding, where the city has
18
motion, contending as a practical matter the City was not yet the
prevailing party because the related mandamus action had not
yet been finally determined. It also argued the City had not
prevailed on the dismissed fourth cause of action in the original
complaint (for unfair competition) and challenged the
reasonableness of the fees requested, pointing to particular
instances of duplicative work by lawyers and attorney time for
the mandamus action that was billed to this case. It sought a
reduction of fees requested (if any were awarded) of $24,316.50.
The court granted the motion, modestly reducing the
amount requested, and awarded the City $107,791.50 in attorney
fees.
On March 16, 2020 Indian Peak filed a timely notice of
appeal from the postjudgment order. At Indian Peak’s request
we consolidated its January 13, 2020 and March 16, 2020
appeals.
DISCUSSION
1. Standard of Review
a. Summary judgment
A plaintiff may move for summary judgment “if it is
contended . . . that there is no defense to the action or proceeding”
(§ 437c, subd. (a)) and for summary adjudication of a cause of
action “if the plaintiff asserts there is ‘no defense’ to that cause of
action.” (Paramount Petroleum Corp. v. Superior Court (2014)
227 Cal.App.4th 226, 241.) The plaintiff has carried his or her
burden of showing there is no defense to a cause of action “if that
party has proved each element to the cause of action entitling the
elected, at the initiation of that individual action or proceeding, to
seek recovery of its own attorneys’ fees.”
19
party to judgment on the cause of action.” (§ 473c, subd. (p)(1);
see Paramount Petroleum, at pp. 239-240 [“a plaintiff can seek
summary judgment by contending there is ‘no defense’ to the
action, and it proves there is ‘no defense’ by establishing every
element of its causes of action”].) The motion is properly granted
only when “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” (§ 473c, subd. (c).)
We review a grant of summary judgment de novo (Samara
v. Matar (2018) 5 Cal.5th 322, 338) and, viewing the evidence in
the light most favorable to the nonmoving party (Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607,
618), decide independently whether the facts not subject to
triable dispute warrant judgment for the moving party as a
matter of law. (Hampton v. County of San Diego (2015)
62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th
610, 618.)
b. Attorney fees
We review the legal basis for an award of attorney fees de
novo and the amount of fees awarded for abuse of discretion.
(See Mountain Air Enterprises, LLC v. Sundowner Towers, LLC
(2017) 3 Cal.5th 744, 751 [“‘it is a discretionary trial court
decision on the propriety or amount of statutory attorney fees to
be awarded, but a determination of the legal basis for an attorney
fee award is a question of law to be reviewed de novo’”]; Orozco v.
WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 406 [same]; see
also Galan v. Wolfriver Holding Corp. (2008) 80 Cal.App.4th 1124[the trial court has broad discretion to determine which party is a
prevailing party within the meaning of statutes authorizing
attorney fees].)
20
2. Governing Law
a. Public nuisances (nuisances in fact)
Civil Code section 3479 defines a nuisance as “[a]nything
which is injurious to health, . . . or is indecent or offensive to the
senses, or an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property . . . .”
Civil Code section 3480, in turn, provides, “A public nuisance is
one which affects at the same time an entire community or
neighborhood, or any considerable number of persons, although
the extent of the annoyance or damage inflicted upon individuals
may be unequal.” 13
“Unlike the private nuisance—tied to and designed to
vindicate individual ownership interests in land—the ‘common’
or public nuisance emerged from distinctly different historical
origins. The public nuisance doctrine is aimed at the protection
and redress of community interests and, at least in theory,
embodies a kind of collective ideal of civil life which the courts
have vindicated by equitable remedies since the beginning of the
16th century.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th
1090, 1103.) “Of course, not every interference with collective
social interests constitutes a public nuisance. To qualify . . . the
interference must be both substantial and unreasonable.” (Id. at
p. 1105.) “‘It is substantial if it causes significant harm and
unreasonable if its social utility is outweighed by the gravity of
the harm inflicted.’” (People v. ConAgra Grocery Products Co.
(2017) 17 Cal.App.5th 51, 112; accord, County of Santa Clara v.
Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305; see CACI
13 “Every nuisance not included in the definition of [Civil
Code section 3480] is private.” (Civ. Code, § 3481.)
21
No. 2020 [to establish a claim for public nuisance, the plaintiff
must prove, among other elements, that the seriousness of the
harm outweighs the social utility of the defendant’s conduct].)
b. Nuisance per se
“The concept of a nuisance per se arises when a legislative
body with appropriate jurisdiction, in the exercise of the police
power, expressly declares a particular object or substance,
activity, or circumstance, to be a nuisance. . . . [W]here the law
expressly declares something to be a nuisance, then no inquiry
beyond its existence need be made and in this sense its mere
existence is said to be a nuisance per se.” (Beck Development Co.
v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th
1160, 1206-1207; accord, Urgent Care Medical Services v. City of
Pasadena (2018) 21 Cal.App.5th 1086, 1095 [“‘“[n]uisances per se
are so regarded because no proof is required, beyond the actual
fact of their existence, to establish the nuisance”’”]; City of
Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1086
[“[a]n act or condition legislatively declared to be a public
nuisance is ‘“a nuisance per se against which an injunction may
issue without allegation or proof of irreparable injury”’”].)
Government Code section 38771 provides, “By ordinance
the city legislative body may declare what constitutes a
nuisance.” (See City of Bakersfield v. Miller (1966) 64 Cal.2d 93,
100 [“[c]ity legislative bodies are empowered by Government
Code section 38771 to declare what constitutes a nuisance”];
Clary v. City of Crescent City (2017) 11 Cal.App.5th 274, 288-
289.) The City in RPV Municipal Code section 1.08.010,
subdivision (D)(1), has specified, “[A]ny condition caused or
permitted to exist in violation of the provisions of this code shall
be deemed a public nuisance and may be abated as such at law or
22
equity.” As pertinent here, RPV Municipal Code
section 17.76.020, subdivision (A), provides, “The installation
and/or operation of a commercial antenna shall require the
submittal and approval of a conditional use permit.” Pursuant to
RPV Municipal Code section 17.60.080, “[i]f any of the conditions
to the use or development are not maintained, then the
conditional use permit shall be null and void. Continued
operation of a use requiring a conditional use permit after such
conditional use permit expires or is found in noncompliance with
any condition of a conditional use permit shall constitute a
violation of this title.”
3. The Trial Court Did Not Abuse Its Discretion by
Declining To Rule on Indian Peak’s Procedurally
Improper Request for a Stay
Ignoring its own procedural failures, as well as the
shortcomings of its argument on the merits, Indian Peak
contends the trial court abused its discretion by not ruling on its
request to stay the nuisance action pending final resolution of the
mandamus proceedings, a request it included in its second
supplemental opposition to the City’s motion for summary
judgment, filed October 16, 2019, rather than through a noticed
motion. (Cf. Bains v. Moores (2009) 172 Cal.App.4th 445, 480
[trial court’s denial of a motion for a stay reviewed for abuse of
discretion].) In doing so, Indian Peak argues, the court
improperly “elevate[d] form over substance.”
The requirement of a properly noticed motion to seek
affirmative relief, however, is not a mere technicality, but a
fundamental procedural rule designed to protect the rights of the
parties. As the trial court explained in declining to rule on the
stay request, the inclusion of an affirmative request in opposition
23
papers filed less than two weeks before the continued summary
judgment hearing deprived the City of a fair opportunity to
respond with argument and evidence in opposition. (See Austin
v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918,
930 [the requirements for a noticed motion in section 1010 are
“intended to provide both the adverse party and the court with an
adequate opportunity to address the issues presented”].)
Requesting a stay in this belated and procedurally irregular
manner was entirely unnecessary: Even putting aside that it
was Indian Peak’s decision not to file the mandamus action as a
cross-complaint in the City’s lawsuit or seek to have the
two matters consolidated, Indian Peak could have moved for
abatement or stay of the mandamus action as early as January
2019 when it demurred to the City’s original nuisance complaint;
yet it elected not to do so. When the trial court did not rule on
Indian Peak’s June 21, 2019 ex parte application for a stay of the
case, granting instead its alternate request for a continuance of
the hearing date to permit additional discovery, Indian Peak
again chose not to file a noticed motion to obtain the relief it
purportedly wanted. Then, when it filed its first supplemental
opposition on August 13, 2019, Indian Peak asked the court to
continue the hearing 60 days to permit the superior court’s
August 9, 2019 order denying the petition for writ of
administrative mandamus to become final (and to permit
additional discovery); it did not request a stay of the proceedings,
either in its opposition papers or by separate motion. Having
made these tactical decisions, Indian Peak cannot now complain
of the consequences.
To be sure, section 437c, subdivision (h), as Indian Peak
argues on appeal, authorizes the court to continue the summary
24
judgment hearing or “make any other order as may be just” if a
party opposing the motion makes a sufficient showing in its
opposition papers that “facts essential to justify opposition may
exist but cannot, for reasons stated, be presented.” Indian Peak’s
reliance on this section is doubly flawed. First, Indian Peak did
not cite section 437c, subdivision (h), in its second supplemental
opposition papers to support its request for a stay. (Indeed, in its
original opposition papers, when it requested either a stay or a
continuance of the hearing to conduct additional discovery,
Indian Peak cited section 437c, subdivision (h), to support the
latter request, but not the former.) Second, the stay was not
sought because facts “may exist” that would support Indian
Peak’s opposition, the prerequisite for any order under
section 437c, subdivision (h). Rather, Indian Peak simply hoped
facts would develop in the future (a reversal on appeal) that
would aid in its defense to the nuisance lawsuit. (Cf. Bains v.
Moores, supra, 172 Cal.App.4th at pp. 485-486 [denying stay
pending resolution of criminal proceedings to permit discovery
from witnesses asserting their constitutional right not to
incriminate themselves; plaintiffs “do not address the likelihood
that the related criminal proceedings would be resolved within a
reasonable period of time so as to allow plaintiffs to obtain such
evidence”].)
In addition to being procedurally improper, Indian Peak’s
stay request was substantively deficient. As the trial court
observed, Indian Peak failed to explain how the mandamus
action challenging revocation of CUP 230 based on the City’s
purported failure to provide Indian Peak a fair hearing (by
denying its newly retained counsel a continuance) and arbitrary
action (revoking the conditional use permit while its revision
25
application was pending) could affect the first cause of action,
which established a nuisance per se because Indian Peak had
admittedly installed and operated commercial antennae not
authorized by CUP 230. Whatever the appropriate exercise of
discretion might have been in response to a properly noticed
motion to stay the second cause of action, the trial court did not
abuse its discretion when it declined to rule on Indian Peak’s
procedurally irregular request to stay the entire nuisance
lawsuit.
4. The City Established the Elements of Its First and
Second Causes of Action but Not Its Third Cause of
Action for Public Nuisance
a. The first and second causes of action
The City presented evidence, including Afflerbach’s expert
declaration, establishing that Indian Peak had installed and
operated commercial antennae in violation of the provisions of
CUP 230 and the pertinent provisions of the RPV Municipal Code
and continued to do so after CUP 230 was revoked in violation of
other provisions of the Municipal Code. Indian Peak admitted it
added antennae not authorized by CUP 230, yet nonetheless
challenges the trial court’s ruling its conduct established the
affirmative elements of nuisance per se as alleged in the City’s
first and second causes of action. (Indian Peak also asserts
defenses to the causes of action, which we address in the
following section of our opinion.)
Indian Peak’s argument is based on a fundamental
misreading of the court of appeal’s decision in Clary v. City of
Crescent City, supra, 11 Cal.App.5th 274. As the Clary court
explained, the Supreme Court in City of Bakersfield v. Miller,
supra, 64 Cal.2d 93 held state laws more specific than Civil Code
26
section 3479 defining certain nuisances with greater
particularity—there, a state housing regulation—do not define
the limits of what may be declared a nuisance by municipal law
under Government Code section 38771. However, the Supreme
Court did not decide whether municipalities’ power to declare
nuisances applied only to specific conditions within the general
areas of regulation enumerated in Civil Code section 3479
because the fire hazard addressed by the Bakersfield
ordinance clearly fell within the definition of public nuisance in
Civil Code section 3479. (City of Bakersfield, at p. 100.)
The court of appeal in Clary answered the question
unresolved in City of Bakersfield, agreeing with Golden Gate
Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th
249, 255-256 that local governments have the “authority to
impose and enforce land use regulations, through a nuisance
ordinance or otherwise, without regard to whether the prohibited
use falls within the Civil Code definition of nuisance.” (Clary v.
City of Crescent City, supra, 11 Cal.App.5th at p. 289.)14 Thus,
far from supporting Indian Peak’s argument a local government’s
land use ordinance cannot be the basis for a nuisance per se
determination and the municipality must demonstrate not only
that its ordinance was violated but also that the prohibited
14 The Clary court also held the overgrown vegetation defined
as a nuisance by the weed abatement ordinance at issue in the
case fell within the statutory definition of public nuisance in Civil
Code section 3479. (Clary v. City of Crescent City, supra,
11 Cal.App.5th at p. 289.) Indian Peak mistakenly asserts this
alternate basis for the decision vitiates the court’s holding that
Civil Code section 3479 does not limit the scope of a local
government’s authority to enforce land use regulations through
nuisance law.
27
conduct at issue satisfied the elements of the statutory definition
of public nuisance in Civil Code section 3479, including balancing
the harmful effect of the defendant’s conduct against its social
utility, Clary holds precisely to the contrary. Nothing more than
the fact of the violation’s existence is necessary to establish a
nuisance per se. (See Urgent Care Medical Services v. City of
Pasadena, supra, 21 Cal.App.5th at p. 1095.) The trial court
properly concluded the City had established the elements of its
first two causes of action for nuisance per se. (See Clary, at
p. 289 [“We agree with the City that Golden Gate Water Ski Club
is dispositive here. There can be no doubt that the City’s police
powers are broad enough to encompass aesthetic concerns”].)
Indian Peak’s objections to Afflerbach’s expert declaration
that none of the antennae added by Indian Peak was “consistent
with CUP No. 230, nor could the antennas be considered as
modifications to the masts and antennas allowed by
CUP No. 230,” even if they had been well-taken,15 do not compel a
15 Indian Peak objected the terms “consistent” and
“modification” were vague and ambiguous and Afflerbach’s
opinion was irrelevant because it failed to prove a violation of
CUP 230. Indian Peak also objected to two other portions of
Afflerbach’s declaration as argumentative and irrelevant because
they failed to prove a violation of the City’s municipal code. The
trial court overruled the objections. On appeal Indian Peak
argues its objections should have been sustained because
Afflerbach’s declaration failed to provide information sufficient to
establish public nuisance and thus were “irrelevant, improper
expert opinion, and speculative.”
Whether evaluated de novo or under an abuse of discretion
standard of review (see Reid v. Google, Inc. (2010) 50 Cal.4th 512,
535; Orange County Water Dist. v. Sabic Innovative Plastics US,
LLC (2017) 14 Cal.App.5th 343, 368), the trial court did not err in
28
different result. It was undisputed, as Afflerbach established in
portions of his declaration to which Indian Peak did not object
and as Indian Peak admitted in its verified answer, that
additional antennae not authorized by CUP 230 had been added
to the antennae array on the roof of the residence on Indian Peak
Road. Although Kay, in his declaration in opposition to the City’s
motion, asserted that “[m]any of the additional antenna”
functioned as “wireless internet service providers, providing
internet to the home and allow[ing] for the operation of internet
at the Subject Property” and thus, in his lay opinion, did not
qualify as “commercial radio services” subject to the City’s
regulation, he did not contend all the additional antennae fell
into that category or were otherwise permissible without an
amendment or revision to CUP 230.
b. The third cause of action
In its motion for summary judgment the City argued its
third cause of action for public nuisance in violation of Civil Code
sections 3479 and 3480 was predicated on the doctrine of
nuisance per se and Indian Peak’s violation of the provisions of
admitting this evidence. That an expert’s opinion ultimately may
not be persuasive on the issue for which it is proffered is not a
proper ground for excluding his or her testimony. (See Sargon
Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 772 [The trial court’s role as gatekeeper “to
exclude ‘clearly invalid and unreliable’ expert opinion” is not a
decision on its persuasiveness. “The court must not weigh an
opinion’s probative value or substitute its own opinion for the
expert’s opinion. Rather, the court must simply determine
whether the matter relied on can provide a reasonable basis for
the opinion or whether that opinion is based on a leap of logic or
conjecture”].)
29
CUP 230 and its continued operation of commercial antennae on
the property after CUP 230 had been revoked. The same
46 material facts were asserted in support of the third cause of
action as for the first two causes of action. Thus, it is not
altogether surprising the trial court observed the third cause of
action was duplicative of the first two.
A trial court when ruling on a motion for summary
judgment is required to determine whether undisputed facts
entitle the moving party to judgment as a matter of law based on
the issues as framed by the pleadings, not by the moving party’s
motion papers. (See generally Turner v. Anheuser-Busch (1994)
7 Cal.4th 1238, 1252; Jacobs v. Coldwell Banker Residential
Brokerage Co. (2017) 14 Cal.App.5th 438, 444.) As discussed, the
City’s third cause of action for public nuisance, although
incorporating by reference the preceding paragraphs of the
pleading and averring that Indian Peak’s actions violated the
RPV Municipal Code (without specification of any particular
section), alleged, “The installation and operation of commercial
antennae on the Property by the Defendant are injurious to the
public health, safety, and welfare and are so out of harmony with
community standards and permissible land use to constitute a
public nuisance and/or public nuisance per se.” That is, as set
forth in the operative pleading, the City alleged a public nuisance
within the meaning of the statutory definition in Civil Code
section 3479—something in addition to, not duplicative of, its
first two causes of action. Yet its evidence in support of summary
judgment failed to address the elements of this cause of action, in
no way demonstrating, for example, how large a portion of the
relevant community was affected by the antenna array
(notwithstanding the City’s explanation it had one complaint in
30
2014 and four individuals testified in support of revoking CUP
230 at the public hearing), let alone establishing as an
undisputed fact that the harm caused by Indian Peak’s continued
operation of the antennae outweighed the social benefit of its
conduct.
In short, the trial court erred in granting summary
adjudication in favor of the City on the third cause of action and,
as a consequence, in granting the motion for summary judgment.
5. Indian Peak Failed To Demonstrate Triable Issues of
Fact Regarding Its Defenses of Invalidity of the City’s
Municipal Code Provisions, Federal Preemption and
Consent
Indian Peak argues on appeal the City’s zoning ordinances
on which the nuisance causes of action are based violate due
process and the City’s enforcement action is barred by federal
preemption and consent. None of these purported defenses has
merit.
a. Due process
Indian Peak did not argue in the trial court, as it does on
appeal, that the City’s ordinances violate due process by allowing
arbitrary and irrational enforcement actions. The issue has been
forfeited. (Cabatit v. Sunnova Energy Corp. (2020)
60 Cal.App.5th 317, 322 [“[i]f a party fails to raise an issue or
theory in the trial court, we may deem consideration of that issue
or theory forfeited on appeal”]; Rancho Mirage Country Club
Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 264
[“[a]s a general rule, issues not raised in the trial court cannot be
raised for the first time on appeal,” internal quotation marks
omitted]; accord, People v. Covarrubias (2016) 1 Cal.5th 838,
894.) Moreover, to the extent Indian Peak’s constitutional
31
argument is directed to the process leading to revocation of
CUP 230 (for example, that the City acted arbitrarily in
determining Indian Peak’s revision application was incomplete or
in purportedly deviating from its usual practice in providing
opportunities for those in violation of conditional use permits to
cure the violations), those matters were properly raised, if at all,
in the mandamus proceeding.
Indian Peak’s additional contention the ordinances and
their enforcement in this case lacked any substantial relationship
to a legitimate governmental purpose (that is, to the protection of
the public health or safety or general welfare) is simply a
repackaged version of its argument that a local ordinance cannot
define a nuisance per se unless the prohibited conduct satisfies
the statutory definition of a public nuisance. As discussed, this
purported limitation on the local police power is contrary to well-
established law.
b. Federal preemption
The TCA prohibits state or local regulation of the
placement, construction and modification of personal wireless
service facilities16 by any state or local government that
unreasonably discriminates among providers of functionally
equivalent services and state or local regulations that have the
effect of prohibiting the provision of personal wireless services.
(47 U.S.C. § 332(c)(7)(B)(i).)17 Indian Peak asserted in the trial
16 “‘[P]ersonal wireless services’ means commercial mobile
services, unlicensed wireless services, and common carrier
wireless exchange access services.” (47 U.S.C. § 332(c)(7)(C)(i).)
17 In a statement that comes perilously close to violating
counsel’s ethical obligation of candor to this court (Rules Prof.
Conduct, rule 3.3(a)(1) [a lawyer shall not knowingly make a false
32
court that the City’s conduct in declaring a violation of CUP 230
and revoking CUP 230 based on the installation of exempt-from-
regulation antennae unreasonably discriminated against Indian
Peak and had the effect of prohibiting Indian Peak’s provision of
personal wireless services. On appeal, in addition to
title 47 United States Code section 332(c)(7), Indian Peak cites
for the first time in this case 47 Code of Federal Regulations
part 1.4000, which prohibits restrictions that impair the
installation, maintenance or operation of certain antennae used
to receive or transmit fixed wireless signals, including direct-to-
home satellite dishes that are less than one meter in diameter
(the Over-the-Air-Reception Devices (OTARD) rule). Indian Peak
statement of fact or law to a tribunal]), in its opening brief Indian
Peak, citing title 47 United States Code section 332(c)(7)(B)(i),
incorrectly asserts that federal law “expressly prohibits
municipalities’ regulation of ‘the placement, construction and
modification of personal wireless service facilities.’” In fact, the
limited restrictions on state and local regulation of personal
wireless service facilities in that subdivision, summarized in the
text, is part of a more general provision of the TCA concerning
regulatory treatment of mobile services titled, “Preservation of
local zoning authority,” which states, “Except as provided in this
paragraph, nothing in this Act shall limit or affect the authority
of a State or local government or instrumentality thereof over
decisions regarding the placement, construction, and modification
of personal wireless service facilities.” (47 U.S.C. § 332(c)(7)(A);
see Omnipoint Communications, Inc. v. City of Huntington Beach
(9th Cir. 2013) 738 F.3d 192, 195 [Ҥ 332(c)(7)(A) functions to
preserve local land use authorities’ legislative and adjudicative
authority subject to certain substantive and procedural
limitations”].) That is, only certain specific types of regulations
are prohibited—those that discriminate or would effectively
preclude any provision of wireless services.
33
argues there are triable issues of material fact as to whether the
additional antennae it installed are “exempt” under federal law
and whether the City’s ordinances and enforcement actions in
preventing the installation and continued operation of those
antennae are preempted by federal law.
Specifically, Indian Peak contends the City’s enforcement
action violated federal law (or that it demonstrated the existence
of triable issues of fact as to whether the abatement proceedings
violated federal law) because the City never attempted to
determine, through consulting with experts or otherwise,
whether any of the roof-mounted antennae installed by Indian
Peak were “exempt” from regulation. As discussed, however,
under title 47 United States Code section 332(c)(7)(A) & (B),
antennae for personal wireless services are not exempt from
regulation, as Indian Peak misleadingly asserts; rather, local
regulation may not discriminate among providers of personal
wireless services or generally prohibit the provision of those
services. Indian Peak failed to present any evidence that would
establish a violation of those limitations as a defense to the City’s
nuisance action or explain why, in the absence of any such
evidence, it was the City’s responsibility (and not Indian Peak’s)
to investigate the nature and function of the antennae
maintained by Indian Peak in violation of CUP 230 and evaluate
their status under federal law.
Indian Peak argued in the trial court that the City’s actions
were discriminatory, citing the City’s treatment of an application
for a conditional use permit by Marymount College and an
application for modification of a conditional use permit by AT&T.
The trial court found the evidence insufficient to create a triable
34
issue of fact,18 and Indian Peak does not repeat that contention
on appeal. Similarly, although the City’s abatement action may
prevent Indian Peak from continuing to provide personal wireless
services, at least until it complies with local zoning rules and
obtains a new conditional use permit, Indian Peak presented no
evidence the City’s requirement that personal wireless service
providers obtain conditional use permits before installing and
maintaining commercial antennae on residential property
effectively precluded the provision of personal wireless services
within a significant portion of the City. (See, e.g., Omnipoint
Holdings, Inc. v. City of Cranston (1st Cir. 2009) 586 F.3d 38, 48
[“[w]hen a carrier claims an individual denial is an effective
prohibition, virtually all circuits require courts to (1) find a
‘significant gap’ in coverage exists in an area and (2) consider
whether alternatives to the carrier’s proposed solution to that gap
mean that there is no effective prohibition”]; see also Green
Mt. Realty Corp. v. Leonard (1st Cir. 2012) 688 F.3d 40, 57
[“while ‘an individual denial is not automatically a forbidden
prohibition . . . [,] we [cannot] rule out the possibility that—based
on language or circumstances—some individual decisions could
be shown to reflect, or represent, an effective prohibition on
personal wireless service’”].)
18 The trial court explained Indian Peak had submitted no
evidence the Marymount application was comparable to Indian
Peak’s revision application, so that it was not possible to evaluate
whether any purported differences in the review process were
discriminatory. Similarly, Indian Peak presented no evidence
whether the AT&T application was ever completed, let alone
ultimately granted, again precluding any evaluation whether
Indian Peak was the victim of discriminatory or arbitrary action
by the City.
35
The OTARD rule, like title 47 United States Code
section 332, does not “exempt” covered antennae from all local
laws or regulations; rather, it prohibits restrictions or
requirements that “impair”—that is, that unreasonably delay or
prevent or unreasonably increase the cost of19—the installation,
maintenance or operation of antennae used to receive video
programming services, including direct-to-home satellite service,
or to receive or transmit fixed wireless signals via satellite on
property within the exclusive use or control of the antenna user.
(See 47 C.F.R. § 1.4000(a)(1).) Indian Peak asserts its roof-
mounted satellite dish antenna is exempt from any regulation
under the OTARD rule and complains the trial court never
mentioned this OTARD exemption. But Indian Peak never cited
the OTARD rule in the trial court or contended it provided a
defense to the City’s nuisance action. Any reliance on that rule
has been forfeited. (Cabatit v. Sunnova Energy Corp., supra,
60 Cal.App.5th at p. 322; Rancho Mirage Country Club
Homeowners Assn. v. Hazelbaker, supra, 2 Cal.App.5th at
p. 264.)20
19 The OTARD rule specifies “a law, regulation, or restriction
impairs installation, maintenance, or use of an antenna if it: [¶]
(i) Unreasonably delays or prevents installation, maintenance, or
use; [¶] (ii) Unreasonably increases the cost of installation,
maintenance, or use; or [¶] (iii) Precludes reception or
transmission of an acceptable quality signal.” (47 C.F.R.
§ 1.4000(a)(3).)
20 Responding to the City’s argument that Indian Peak had
forfeited its OTARD arguments, Indian Peak insists in its reply
brief that OTARD was raised in its second supplemental
opposition memorandum. It was not. Indian Peak asserted its
satellite dish antennae was exempt from regulation under
36
Even were the merits of its OTARD argument properly
before this court, Indian Peak presented no evidence its satellite
dish antenna came within the scope of the rule, which does not
apply to antennae larger than one meter in diameter (47 C.F.R.
§ 1.4000(a)(1)(i)(B)), or that any of the other multiple antenna
masts and antennae it had added to the roof of the property since
2005 were protected by the OTARD rule. Neither has it
explained, much less cited authority for, the proposition essential
to its argument that, when a collection of antennae includes both
federally protected and unprotected items, requiring a
conditional use permit for the entire array constitutes an
unreasonable burden on the installation or maintenance of the
protected antennae, which is all that the OTARD rule
precludes.21 In sum, Indian Peak failed to demonstrate a triable
issue of fact existed as to its defense of federal preemption.
RPV Municipal Code section 17.76.020, subdivision (B)(2), but did
not cite, let alone discuss, OTARD or 47 Code of Federal
Regulations part 1.4000. Indian Peak did argue the roof-
mounted satellite dish antenna was protected by 47 Code of
Federal Regulations part 1.4000 in superior court in its papers
supporting its request for a petition for writ of administrative
mandamus.
21 Even if one or more of Indian Peak’s antennae were
protected by the OTARD rule, there appears no reason the
installation and maintenance of other, unprotected antennae in
violation of a conditional use permit could not properly be found
to be a nuisance per se. The extent of the ensuing injunction or
order of abatement might be affected, but not the underlying
nuisance determination. Indian Peak does not argue on appeal
the scope of the injunction against it should be narrowed.
37
c. Consent
Consent can be a defense to a claim of nuisance (Mangini v.
Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1138),
although not necessarily to an action for the abatement of a
public nuisance. (Id. at p. 1139 [“we do not suggest that consent
of an owner/lessor can impede the abatement of a public
nuisance”]; accord, Beck Development Co. v. Southern Pacific
Transportation Co., supra, 44 Cal.App.4th at p. 1215; cf. Hansen
Bros. Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th
533, 564 [“the county lacks the power to waive or consent to
violation of the zoning law”].) In any event, Indian Peak’s
defense of consent fails as a factual matter.
Indian Peak’s initial installation of its antenna array,
although accomplished without prior consent, was ultimately
approved with the issuance of CUP 230. But Indian Peak
violated the provisions of CUP 230 by installing and maintaining
additional commercial antennae, and the permit was revoked.
There was no longer consent for Indian Peak’s continuing
operation of its original antennae, let alone for the new ones it
had added.
Indian Peak does not dispute those basic facts, but
contends any violation of CUP 230 was cured, and its operation of
additional commercial antennae was pursuant to the City’s
“consent,” because it submitted a revision application in
accordance with the City’s July 26, 2016 letter. Simply put, a
pending application to revise the conditional use permit—asking
for consent—is not consent. Moreover, this court in the
companion mandamus appeal, Indian Peak Properties, LLC v.
City of Rancho Palos Verdes, supra, B303325), held, because
Indian Peak failed to exhaust available administrative remedies
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to challenge the City’s actions in determining the revision
application was incomplete, the decision not to process the
application did not in any way undermine the propriety of the
decision to revoke CUP 230.
6. Reversal of the Judgment Requires Reversal of the
Postjudgment Award of Attorney Fees
Our reversal of the judgment in favor of the City
necessarily requires reversal of the postjudgment award of
attorney fees to it as the prevailing party in the action. (See
Friends of the Hastain Trail v. Coldwater Development LLC
(2016) 1 Cal.App.5th 1013, 1037; Samples v. Brown (2007)
146 Cal.App.4th 787, 811; see also Gillan v. City of San Marino
(2007) 147 Cal.App.4th 1033, 1053 [after a judgment is reversed
on appeal, the issue of trial costs is “‘set at large’”]; Allen v. Smith
(2002) 94 Cal.App.4th 1270, 1284 [same].)
DISPOSITION
The judgment and postjudgment order are reversed. The
cause is remanded with directions to the trial court to enter a
new order denying the City’s motion for summary judgment,
granting the motion for summary adjudication as to the first and
second causes of action and denying the motion for summary
adjudication as to the third cause of action. The parties are to
bear their own costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J. IBARRA, J.*
* Judge of the Santa Clara Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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