Oliver v. At&T Wireless Services, No. C029233.

CourtCalifornia Court of Appeals
Writing for the CourtKolkey
Citation76 Cal.App.4th 521,90 Cal.Rptr.2d 491
PartiesMelvin E. OLIVER et al., Plaintiffs and Appellants, v. AT&T WIRELESS SERVICES et al., Defendants and Respondents.
Decision Date29 November 1999
Docket NumberNo. C029233.
90 Cal.Rptr.2d 491
76 Cal.App.4th 521
Melvin E. OLIVER et al., Plaintiffs and Appellants,
AT&T WIRELESS SERVICES et al., Defendants and Respondents.
No. C029233.
Court of Appeal, Third District.
November 29, 1999.
Certified for Partial Publication.*

[90 Cal.Rptr.2d 493]

[76 Cal.App.4th 524]

James P. McKenna, Peters, Rush, Habib & McKenna, Chico, for Plaintiffs and Appellants.

Watson, Khachadourian & Re, Sacramento, Kevin R. Iams; Weintraub, Genshlea & Sproul, Charles L. Post and Kelly E. Sutter, Sacramento, for Defendants and Respondents.


After an existing 110-foot cellular telephone transmission tower on their neighbors' property was replaced by one that was approximately 20 feet taller, plaintiffs Melvin E. Oliver and Brigitte M. Oliver

76 Cal.App.4th 525

brought this action against their neighbors, John J. and Joyce A. Permann (the Permanns), various cellular telephone companies, and the County of Butte (the County), claiming inverse condemnation, nuisance, intentional and negligent misrepresentation, suppression of fact, and four other causes of action.

The trial court granted summary judgment in favor of the Permanns and the following cellular telephone companies: AT & T Wireless Services, Cellular One, and McCaw Cellular Communications.

The published portion of this opinion addresses the issues of whether the construction of a cellular transmission tower on a neighbor's property, in accordance with approvals from the County and the California Public Utilities Commission (PUC), gives rise to causes of action for inverse condemnation and nuisance by the adjoining property owners by reason of the transmission tower's "looming" appearance, which has purportedly decreased the value of their property.

Significantly, any remedy that is given to the plaintiff property owners for the perceived infringement of their property rights will result in an infringement of their neighbors' rights to lease their land for the use of the transmission tower. In this particular case, while we have sympathy for plaintiffs' plight, not all plights give rise to legal rights. We conclude that the mere displeasing appearance in size and

90 Cal.Rptr.2d 494

shape of a neighboring structure that is otherwise permitted by law, the only admitted effect of which is an alleged diminution in value of the adjacent property, cannot constitute a nuisance or give rise to an inverse condemnation claim.1 Since a landowner has no natural right to an unobstructed view (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1250, 280 Cal.Rptr. 568), the size and shape of an otherwise lawful structure on one side of a boundary cannot be deemed either to damage (for purposes of inverse condemnation) or to interfere with the enjoyment (for purposes of nuisance) of that which is on the other side of the boundary. Otherwise, one person's tastes could form the basis for depriving another person of the right to use his or her property, and nuisance law would be transformed into a license to the courts to set neighborhood aesthetic standards. We affirm summary judgment in defendants' favor.

76 Cal.App.4th 526

A. The Tower's Construction

For more than 26 years, plaintiffs, Mr. & Mrs. Oliver, have lived on a 20-acre parcel on Power House Hill Road in Oroville, California. Immediately adjacent to plaintiffs' property is a two-and-one-half acre parcel located on Bronson Court, Oroville, owned by defendants, the Permanns.

In or about 1990, the Permanns leased a portion of their property near the plaintiffs' parcel for the construction of a cellular telephone transmission tower.2 In 1990, a 110-foot transmission tower, with a cargo container at its base (the service module), surrounded by a chain link security fence, was constructed on the leased portion of the Permanns' property (the cell site). Although the plaintiffs later testified that they "might not have liked" the transmission tower, they never complained to the Permanns or anyone else about it.

In 1994, defendant Cellular One sought a use permit from the County Planning Commission to upgrade several facilities, including the cell site.

Before the cell site upgrade began, John Permann told Melvin Oliver that the existing service module would be moved and that a new service module would be constructed in its place. No other defendant communicated with the plaintiffs about the upgrade of the cell site prior to the construction of the new tower.

The County Planning Department approved the proposed upgrade, subject to several conditions, including that it "[m]eet the Fire Department's requirements for 30 foot clearance." The PUC also approved the cell site improvements.

Thereafter, the 110-foot tower and its service module were replaced by a new, larger tower (from time to time referred to as the new tower)3 and a 10-foot-by-20-foot concrete outbuilding. The center of the new tower is located 41 feet from plaintiffs' property line. At its closest point, standing at an angle to the property line, the outbuilding stands 13 feet from plaintiffs' property line. The chain link security fence that surrounds the cell site, also standing at an angle to the property line, is only seven feet from plaintiffs' property at its closest point.

76 Cal.App.4th 527

B. Plaintiffs' Criticisms of the New Tower

Plaintiffs' primary complaint about the new tower is "visual." They find it a "big

90 Cal.Rptr.2d 495

eyesore" and "oppressive." They contend that it "looms" over their property.

Plaintiffs also observe that the tower produces a "strumming" noise when the wind blows and that the outbuilding produces an intermittent "hum" sound. However, the cell site emits no offensive odors or other effluent, and caused no actual physical damage to plaintiffs' property.

C. Plaintiffs' Complaint

Plaintiffs brought the instant action, which names as defendants, among others, the Permanns, the County, AT & T Wireless Services, Cellular One, and McCaw Cellular Communications (the latter three of which shall be referred to collectively as the cellular defendants).4 The first amended complaint seeks damages and an order rescinding the use permit allowing construction of the new tower. It alleges the following nine causes of action: inverse condemnation, nuisance, negligence, and negligent infliction of emotional distress (against all defendants); trespass and negligent trespass (against all defendants except the County); fraud/intentional misrepresentation and fraud/negligent misrepresentation (against AT & T Wireless Services and Cellular One); and suppression of fact (against Cellular One only).

D. The Trial Court's Grant of Summary Judgment

Following discovery, defendants moved for summary judgment, or alternatively, for summary adjudication, on the grounds that plaintiffs could not establish any of their causes of action.

The trial court granted the motion, finding that defendants were entitled to judgment as a matter of law on all causes of action. Among other things, the court found that (1) no cause of action for inverse condemnation could be maintained against the Permanns because they lacked the power of eminent domain, and as to the cellular defendants, "the tower does not create a burden on the plaintiffs' property that is cognizable in eminent domain"; (2) Civil Code section 3482 bars plaintiffs' nuisance claim; and (3) plaintiffs could not demonstrate that they relied upon the alleged representations by

76 Cal.App.4th 528

Cellular One to the County for purposes of their causes of action for misrepresentation and suppression of fact.

Plaintiffs' appeal contends that the trial court erred in determining that no triable issues of fact existed with respect to the first five causes of action for inverse condemnation, nuisance, intentional and negligent misrepresentation, and suppression of fact. In the published portion of this opinion, we address the causes of action for inverse condemnation and nuisance.


A motion for summary judgment is properly granted if the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant is entitled to summary judgment if a necessary element of the plaintiffs cause of action cannot be established or if there exists a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (o)(2).)

"Because the trial court's determination is one of law based upon the papers submitted, the appellate court must make its own independent determination regarding the construction and effect of the supporting and opposing papers. We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must

90 Cal.Rptr.2d 496

respond. We then determine whether the moving party's showing has established facts which justify a judgment in movant's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279, 48 Cal. Rptr.2d 229.)

"The trial court's stated reasons supporting its ruling, however, do not bind this court," as we review "the ruling, not its rationale." (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19, 17 Cal.Rptr .2d 356.) Consequently, "[i]f summary judgment was properly granted on any ground, we must affirm regardless of whether the [trial] court's reasoning was correct." (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App.4th 1830, 1836, 20 Cal.Rptr.2d 913).

A. The First Cause of Action: Inverse Condemnation

As set forth in their first amended complaint, plaintiffs' theory of inverse condemnation is based on the allegations that (1)...

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