City of Glendale v. Marcus Cable Assocs., LLC

• Decision Date: 18 March 2015
• Docket Number: B249094
• Citation: 235 Cal.App.4th 344,185 Cal.Rptr.3d 331
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF GLENDALE, Plaintiff, Cross-defendant and Appellant, v. MARCUS CABLE ASSOCIATES, LLC, Defendant, Cross-complainant and Appellant.

235 Cal.App.4th 344

185 Cal.Rptr.3d 331

CITY OF GLENDALE, Plaintiff, Cross-defendant and Appellant

v.MARCUS CABLE ASSOCIATES, LLC, Defendant, Cross-complainant and Appellant.

B249094

Court of Appeal, Second District, Division 5, California.

Filed March 18, 2015

Rutan & Tucker, William M. Marticorena, Jeffrey T. Melching, Michelle D. Molko, Costa Mesa, for Plaintiff, Cross-defendant and Appellant.

Coblentz Patch Duffy & Bass, Richard R. Patch, Ann E. Johnston, San Francisco, Frederick C. Crombie for Defendant, Cross-complainant and Appellant.

MOSK, Acting P.J.

INTRODUCTION

As explained below, pursuant to Code of Civil Procedure section 2033.420 (section 2033.420 ), under certain circumstances, a party to a civil action that denies a pretrial request for admission without a reasonable basis can be ordered to pay to the propounding party the reasonable expenses incurred—including attorney fees and costs—in proving the matter covered by the request (costs of proof). Plaintiff, appellant, and cross-respondent City of Glendale (Glendale) appeals from a postjudgment order granting, in part, a motion by defendant, respondent, and cross-appellant Marcus Cable Associates, LLC, doing business as Charter Communications, Inc. (Charter) to recover such costs of proof under section 2033.420. Charter cross-appeals from that portion of the trial court's order denying, in part, its motion.

We hold that the limitation on remedies in 47 U.S.C. § 555a(a) (section 555a(a) )¹ precluded the trial court from awarding Charter costs of proof under section 2033.420. We therefore reverse that portion of the trial court's order granting, in part, Charter's motion for recovery of costs of proof² and remand the matter to the trial court with instructions to enter a new order denying Charter's motion for recovery of costs of proof in its entirety.

BACKGROUND

This action arose from a dispute between Glendale and Charter over whether Charter, as Glendale's cable service provider, could realign Glendale's public, educational, and government (PEG) channel numbers without Glendale's consent. Glendale initiated the litigation by filing a complaint and a request for a temporary restraining order preventing Charter from realigning its PEG channel numbers. In its operative cross-complaint, Charter sought declarations that it had no obligation to provide Glendale with free video programming and cable modem services or with free institutional network (I–Net) services; it was entitled to recover possession and control of the I–Net and damages for wrongful possession and detention of the I–Net; it had the right to realign Glendale's PEG channel numbers; Glendale was unlawfully using PEG access fees; and it had a right to offset past PEG access fee overpayments against future franchise fee payments.

After the trial court's rulings on the parties' summary judgment and summary adjudication motions, the following issues remained for trial on the merits: Charter's request for a declaration concerning its continuing duty to provide free I–Net services; Charter's claim for recovery of the I–Net and damages for past use of the I–Net; Glendale's claim that Charter had given Glendale a permanent right of possession or use of the I–Net; and Charter's request for a declaration that Glendale had used PEG fees for operating costs and therefore had collected from Charter an unlawful franchise fee.

Following a court trial, the trial court issued a statement of decision that included detailed factual findings and ruled in Charter's favor on certain of the I–Net issues, concluding that Glendale had no ownership interest in the I–Net and Charter had no continuing duty to provide free I–Net services and facilities. The trial court also ruled in favor of Charter on the PEG fee issue, concluding that Charter was entitled to a declaration that (i) Glendale used PEG fees for purposes other than capital costs associated with PEG channel facilities and such use was prohibited under the Digital Infrastructure and Video Competition Act of 2006 (State Cable Act)³ and the Federal Cable Act because Glendale was collecting a franchise fee in excess of the federal limit of 5 percent and (ii) the State Cable Act and the Federal Cable Act prohibited any use of PEG fees by Glendale for any purpose other than capital costs, unless such fees were treated as part of a franchise fee.

Charter filed an appeal from the summary adjudications against it. Glendale cross-appealed from the summary adjudication against it and from that part of the judgment based on the trial court's decisions adverse to Glendale on certain of its claims following trial. On appeal, we affirmed the trial court's summary adjudication orders and that portion of the judgment based on the trial court's rulings following trial. (City of Glendale v. Marcus Cable Associates, LLC (2014) 231 Cal.App.4th 1359, 180 Cal.Rptr.3d 726.)

Following entry of judgment, Charter filed a motion to recover its costs of proof under section 2033.420. Glendale opposed the motion, arguing, inter alia, that Charter's request for costs of proof was barred under section 555a(a), which limits the relief that may be obtained against local franchising authorities in actions arising from the regulation of cable service to injunctive and declaratory relief. In ruling on Charter's motion for recovery of costs of proof, the trial court rejected Glendale's section 555a(a) argument, granted the motion, in part, and denied it, in part. Glendale filed a timely notice of appeal from that portion of the order granting the motion to recover costs of proof, and Charter filed a timely notice of cross-appeal from that portion of the order denying its motion.

DISCUSSION

A. Standard of Review and Rules of Statutory Interpretation

Glendale's contention concerning the limitation on remedies in section 555a(a) requires us to interpret that enactment and determine whether it precludes an award of costs of proof under section 2033.420. This is a legal issue we review de novo. (Regents of University of California v. Superior Court (2013) 222 Cal.App.4th 383, 397, 166 Cal.Rptr.3d 166.) The Supreme Court reiterated the rules of statutory interpretation as follows: “When we interpret a statute, ‘[o]ur fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.’ (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 [21 Cal.Rptr.3d 676, 101 P.3d 563].) ‘Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.’ (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063 [103 Cal.Rptr.2d 751, 16 P.3d 166].)” (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165–166, 158 Cal.Rptr.3d 639, 302 P.3d 1026.)

B. Analysis

On appeal, Glendale contends, inter alia, that the trial court erred when it granted, in part, Charter's motion to recover costs of proof under section 2033.420. According to Glendale, the award of attorney fees and costs under section 2033.420 was barred under section 555a(a) because that federal enactment limits to injunctive and declaratory relief the remedies available in actions against franchising authorities or other governmental entities that arise from the regulation of cable service. (See Time Warner Entertainment Co., L.P. v. FCC (D.C.Cir.1996) 93 F.3d 957, 975 [no liability for damages against franchising authority in an action arising from regulation of cable service].) As Glendale reads section 555a(a), that provision precludes awards of damages, including awards of attorney fees and costs, in actions such as the instant one that arose from Glendale's regulation of Charter's cable services. Charter argues that section 555a(a) does not preclude the recovery of such costs of proof because that recovery does not arise from the regulation of cable service and, in any event, such recovery is not damages or relief, but rather is a discovery sanction that enables a trial court to control pretrial litigation.⁴

1. Costs of Proof Under Section 2033.420

A party to a civil action may propound a written request that another party “admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.” (Code Civ. Proc., § 2033.010 ; see 2 Witkin, Cal. Evidence (5th ed. 2012) Discovery, § 162, p. 1141.) Section 2033.420 provides, “(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under [Code of Civil Procedure section 2033.010 ], and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. [¶] (b) The court shall make this order unless it finds any of the following: [¶] (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. [¶] (2) The admission sought was of no substantial importance. [¶] (3) The party failing to make the admission had reasonable...