Cox Cable San Diego, Inc. v. Bookspan

• Decision Date: 25 September 1987
• Citation: 195 Cal.App.3d 22,240 Cal.Rptr. 407
• Court: California Court of Appeals Court of Appeals
• Parties: COX CABLE SAN DIEGO, INC., etc., Plaintiff and Appellant, v. Henry BOOKSPAN et al., Defendants and Respondents. D005176.

Page 407

240 Cal.Rptr. 407

195 Cal.App.3d 22

COX CABLE SAN DIEGO, INC., etc., Plaintiff and Appellant, v. Henry BOOKSPAN et al., Defendants and Respondents.

D005176.

Court of Appeal, Fourth District, Division 1, California.

Sept. 25, 1987.

Ferris, Brennan & Britton, Christopher Q. Britton and Stacy L. Howells, San Diego, for plaintiff and appellant.

Darvy Mack Cohan, La Jolla, for defendants and respondents.

KREMER, Presiding Justice.

Cox Cable San Diego, Inc. (Cox) appeals an order denying a preliminary injunction to allow Cox to reconnect subscribers at the Woodlawn Garden Apartments (Woodlawn) pending a resolution of a dispute with Henry Bookspan, Woodlawn's owner, and Ultronics, Inc. Bookspan had disconnected Cox's cable television system at Woodlawn in favor of a satellite system from Ultronics, Inc. Cox contends Bookspan may not deny Cox access to Woodlawn's tenants without offending the First Amendment. We conclude Cox does not have a constitutionally compelled right of access to the tenants and that the trial court did not abuse its discretion in denying the preliminary injunction.

FACTS

Woodlawn is a 150 unit apartment complex consisting of 16 buildings. In November 1966, Cox's predecessor (Mission Cable Television) contracted with Woodlawn's owner (Bookspan's predecessor) to provide cable television services (CATV). The initial installation and service agreement provided Cox would install the necessary coaxial cables and outlets and the owner would pay for the actual costs of installation as well as a monthly service charge for the cable outlets. The contract was renewed and expanded in 1968 and 1978. Each contract gave Cox a right of access to perform necessary installation and maintenance. The 1978 contract provided Cox had a right of access to solicit subscribers and would, in all cases, deal directly with the tenants. The 1978 contract also provided the owner would prohibit exterior and master antennas for television reception and Cox could, if the owner violated this condition, terminate its CATV service and remove its equipment, require the owner to reimburse Cox for the actual installation costs in servicing Woodlawn's units and/or charge the owner a continuing monthly subscription rate for the affected units.

Some time later, Bookspan bought Woodlawn. In January 1986, Bookspan decided to install a satellite master antenna television system (SMATV) to provide cable television services to his tenants. He entered into a contract with Ultronics, Inc. for this system. He agreed to give Ultronics an exclusive easement to enter the premises to install, improve, replace, maintain or remove its equipment. On April 25, 1986, Bookspan informed Cox of his decision and requested Cox remove its equipment from Woodlawn. Cox refused, citing the contract with Bookspan's predecessor.

Installation of the Ultronics system began in March 1986 and was completed during the first week of May. It cost $54,000 to install the system. Bookspan had to obtain a zoning variance before installation.

On May 9, 1986, Bookspan authorized Ultronics to disconnect Cox's CATV system and to connect Ultronics' SMATV system. In response to subscriber complaints, Cox reconnected some of its subscribers at Woodlawn. On May 19, Bookspan demanded Cox disconnect all service at Woodlawn within three days. When Cox did not comply, Bookspan sent Cox a copy of his letter to Ultronics authorizing Ultronics "to disconnect and remove all cable television equipment owned by Cox Cable."

On June 10, 1986, Cox filed an action in superior court for a temporary restraining order and preliminary injunction. Cox was granted a temporary restraining order enjoining Bookspan and Ultronics from interfering with Cox's reconnection of subscribers at Woodlawn. ¹ During this period Cox reconnected about a dozen subscribers at two of Woodlawn's sixteen buildings.

Cox's motion for a preliminary injunction was heard on June 22, 1986. The trial court denied the injunction, finding Cox had an adequate remedy at law for damages, the contract with Woodlawn's predecessor was ambiguous and Cox had not sustained its burden of showing Cox was likely to prevail on the merits. Cox motioned for reconsideration. On August 29, 1986, the trial court denied Cox's motion, reiterating the same grounds. At both hearings, Cox argued it was entitled to the preliminary injunction under the First Amendment.

DISCUSSION

I

An order for a preliminary injunction is based on a showing that it is desirable to maintain the status quo pending a determination of the merits. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 439 P.2d 889.) When deciding whether to issue a preliminary injunction, the trial court must evaluate two interrelated factors: " 'The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.' [Citations.]" (Langford v. Superior Court (1987) 43 Cal.3d 21, 28, 233 Cal.Rptr. 387, 729 P.2d 822.) A trial court's decision to deny provisional relief is discretionary and will not be reversed if it is supported by sufficient evidence. (Ibid.; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, 496 P.2d 480.)

Cox argues that we should not use the usual substantial evidence standard of review but should conduct a de novo review because the First Amendment is implicated and because there is no substantial factual dispute here. As our discussion will reveal, we need not rely on the substantial evidence rule to support the denial of the preliminary injunction here since we conclude, as a matter of law, Cox has no First Amendment right of access. ²

II

Cox argues the cable television medium is entitled to the same constitutional protection which is accorded the print medium and that denying Cox access to Woodlawn is an unjustified prior restraint of speech and censorship and is a discriminatory regulation of speech in absence of a compelling interest and in disregard of other, less restrictive means.

Cable television is entitled to some First Amendment protection (see Los Angeles v. Preferred Communications (1986) 476 U.S. 488, 106 S.Ct. 2034, 2037-2038, 90 L.Ed.2d 480; Weaver v. Jordan (1966) 64 Cal.2d 235, 49 Cal.Rptr. 537, 411 P.2d 289), however, the cable television medium differs significantly from the print medium and this difference justifies different treatment.

Delivery of the print medium to an apartment dweller involves, at most, a transitory trespass of private property, e.g., tossing the newspaper on the front step or dropping the newspaper in the hallway outside the tenant's apartment. In contrast, delivery of the cable television medium involves a non-transistory physical invasion of private property; it involves physically attaching cable equipment to the owner's building. Unlike the transitory trespass involved in the delivery (or right of access) of print media, Cox's asserted right of access collides with the Fifth Amendment's prohibition against taking private property without just compensation.

In Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868, the United States Supreme Court considered a statute giving cable television companies a right of access to apartment buildings. The statute required landlords to permit cable companies access to their tenants and to affix cable equipment to the landlord's building. The statute was intended to promote " 'rapid development of and maximum penetration by a means of communication which has important educational and community aspects' " (id. at p. 425, 102 S.Ct. at p. 3170), a goal consistent with First Amendment principles. The Supreme Court observed this was a legitimate public purpose, but found the statute resulted in a permanent physical occupation by cable companies of the landlord's property and concluded "that a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve." (Id. at p. 426, 102 S.Ct. at p. 3171.)

The Supreme Court explained a permanent physical occupation "is perhaps the most serious form of invasion of an owner's property interests." (Id. at p. 435, 102 S.Ct. at pp. 3176-77.) In such a case "the government does not simply take a single 'strand' from the 'bundle' of property rights: it chops through the bundle, taking a slice of every strand." (Ibid.) A permanent physical occupation by the cable company denies the owner his right to possess and use the space himself and to exclude others from possessing and using the space. (Id. at p. 436, 102 S.Ct. at p. 3176.) It "forever denies the owner any power to control the use of the property." (Ibid.)

The physical invasion of private property is no less an invasion if it is authorized by the courts through the granting of a preliminary injunction ³ than if authorized by the Legislature enacting a statute mandating a right of access to cable companies. A taking of private property occurs in either case.

The power to take property is strictly limited. An individual or entity may take private property, that is, exercise the power of eminent domain, only if the taking is for a public use and only if a statute specifically grants the individual or entity the power of eminent domain. (People v. Superior Court (1937) 10 Cal.2d 288, 295-296, 73 P.2d 1221; Code of Civ.Proc., §§ 1240.010, 1240.020.) There are no statutes granting cable companies a power of eminent domain nor can such a grant be implied from the statutes regulating cable television systems. ⁴

The Legislature has enacted some statutes addressing cable television access but has not given a right of access to the cable television companies. In Government Code section 66473.3, the...