Kay v. City of Rancho Palos Verdes
| Decision Date | 21 September 2007 |
| Docket Number | No. 05-56149.,05-56149. |
| Citation | 504 F.3d 803 |
| Parties | James A. KAY, Jr., individually and d/b/a Lucky's Two Way Radio; Communications Relay Corporation, a California corporation, Plaintiffs-Appellants, v. CITY OF RANCHO PALOS VERDES, a municipality; Rancho Palos Verdes Planning Commission, and its members; Frank Lyon; Larry Clark; Jon Cartwright; Thomas Opinion Long; Craig Mueller; Theodore Paulson; Donald Vannorsdall; City of Rancho Palos Verdes City Council, and its members; John McTaggart; Douglas Stern; Peter Gardiner; Barbara Ferraro, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
C.D. Michel, Glenn S. McRoberts, and Thomas E. Maciejewski of Trutanich Michel LLP, Long Beach, CA, for the plaintiffs-appellants.
Carol W. Lynch, City Attorney, Rancho Palos Verdes, CA, for the defendants-appellees.
T. Peter Pierce and David G. Alderson of Richards, Watson & Gerson, Los Angeles, CA, for the defendants-appellees.
Appeal from the United States District Court for the Central District of California; Dale S. Fischer, District Judge, Presiding. D.C. No. CV-02-03922-DSF.
Before: BARRY G. SILVERMAN, KIM McLANE WARDLAW, and JAY S. BYBEE, Circuit Judges.
James A. Kay, Jr. wanted to use the pre-existing amateur antennae on the roof of a house in the City of Rancho Palos Verdes ("the City") for commercial wireless transmissions. The City denied him a conditional use permit ("CUP"), and Kay filed suit. The district court dismissed three of his claims, but ruled in his favor on his Telecommunications Act ("TCA") and California state law claims. Although the district court granted injunctive relief, it found that the City enjoys immunity from damages, and denied Kay's request for compensatory damages. Kay appeals the dismissal of three of his claims, the denial of damages, and seeks reassignment to a different judge on remand. We have jurisdiction pursuant to 28 U.S.C. § 1291. We hold that the dismissed claims are now barred by the doctrine of res judicata, and that the City is immune from damages under controlling California law. Finally, we hold that compensatory damages are not available under the TCA, 47 U.S.C. § 332,1 and affirm the district court.
Kay is an FCC-licensed amateur and commercial broadcaster who operates commercial two-way radio systems. Kay operates transmission facilities throughout Southern California. In 1994 he purchased a single-family residence located in Rancho Palos Verdes, California. The house had two pre-existing vertical radio antennae mounted on the roof.2 It has remained unoccupied since 1994. In January 1997, the City sent Kay a notice of violation claiming that he was using his rooftop antennae for commercial purposes. Kay denied using the rooftop antennae commercially. But, in April 1998, he installed antennae for commercial use inside an upstairs bedroom of the house. Then, at some point, Kay installed three more vertical antennae on the roof. On August 5, 1998, Kay filed an application with the City seeking approval for non-commercial use of the antennae on the roof. On July 7, 1999, the City notified Kay that his five antennae were exempt from regulation because they were intended for amateur use.
On April 14, 2000, the City filed suit against Kay in state court, seeking an injunction compelling him to obey the City's municipal code and requiring him to obtain approval from the City before using any of his antennae for commercial purposes. On February 25, 2002, the state court entered a permanent injunction in favor of the City. It held that the interior antennae operated on commercial frequencies and "that the use of any antenna for commercial purposes without having first obtained City approval, including but not limited to a conditional use permit, was a public nuisance per se." The state court enjoined Kay from erecting any new antennae or using his existing antennae for commercial purposes without City approval. This decision was affirmed by the California Court of Appeal in an unpublished opinion on December 30, 2003.
On June 21, 2001, Kay applied to the City for a conditional use permit to allow commercial use of the existing five antennae. In an October 23, 2001 report, City planning staff recommended a conditional grant of his application. At a City Planning Commission meeting on the same day, the commissioners determined that Kay had lied about his past commercial use of the antennae, but took no further action on the application. In a November 13, 2001 report, City planning staff again recommended granting Kay's application. The report also noted that after the application was filed, more antennae were added to the roof of the house. A draft resolution granting Kay's application for only the five antennae was proposed. On November 15, 2001, the City Planning Commission issued a resolution denying commercial use of the rooftop antennae, requiring removal of three of the five antennae, and allowing commercial use of only the internal antennae.
Kay appealed to the City Council. Before his appeal could be heard, a district court decision on another challenge to the City's commercial broadcast policies caused the City to amend its antenna regulations.3 On March 19, 2002, City planning staff again recommended that all five antennae be approved for commercial use. Finally, on April 16, 2002, the City Council approved a resolution granting Kay the right to commercially broadcast from only two of the rooftop antennae. This approval was conditioned on, inter alia, Kay's removal of the other three antennae.
Kay filed suit in the United States District Court for the Central District of California seeking an order that would vacate the City's conditional use permit decision and compel it to allow him to broadcast commercially from all five antennae. He invoked both the TCA and California state law. He also asserted a number of other claims in the complaint, three of which were dismissed by the district court. Kay sought remedies including an injunction, a writ of mandate, damages resulting from the partial denial of the conditional use permit, and attorney's fees under 42 U.S.C. § 1988(b). The district court analyzed the City's CUP decision and determined that it was not supported by substantial evidence as required by the TCA, 47 U.S.C. § 332(c)(7)(B)(iii), and California law. It issued a writ of mandate requiring that the City permit commercial use of all five of Kay's antennae. The district court denied damages under both California and federal law. Kay appeals the dismissal of three claims, the denial of damages under the TCA and state law, and asks that a new judge be assigned on remand.
Kay argues that the district court erred by dismissing three of his claims without prejudice, rather than staying them under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).4 "Abstention by a district court is required under Younger when three criteria are satisfied: (1) State judicial proceedings are ongoing; (2) The proceedings implicate important state interests; and (3) The state proceedings provide an adequate opportunity to raise federal questions." Commc'ns Telesys. Int'l v. Cal. Pub. Util. Comm'n, 196 F.3d 1011, 1015 (9th Cir. 1999). The parties do not dispute the district court's determination that Younger applies to Kay's claims. Nor do they disagree that "[w]hen damages are at issue, and comity dictates, courts should defer" by staying, rather than dismissing, under Younger. Gilbertson v. Albright, 381 F.3d 965, 982 (9th Cir.2004) (en banc). We agree that the district court should have stayed the claims, but conclude that the dismissed claims are now barred as a result of the state proceedings that precipitated the district court's abstention.
"[A] federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Thus, to determine the preclusive effect of the California state court decision, we apply California law. "The application of claim preclusion in California focuses on three questions: (1) was the previous adjudication on the merits, (2) was it final, and (3) does the current dispute involve the same `claim' or `cause of action'?" Robi v. Five Platters, Inc., 838 F.2d 318, 324 (9th Cir.1988) (citing Slater v. Blackwood, 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 543 P.2d 593 (1975)). In City of Rancho Palos Verdes v. Kay, No. B157393, 2003 WL 23025571 (Cal.Ct.App. Dec. 30, 2003), the California Court of Appeal squarely addressed the merits of the three claims dismissed by the district court.5 It held that neither the City's conditional use permit rules nor its antenna ordinance runs afoul of the First Amendment or of the California Constitution. Id. at *7-*8. The decision is also final. "Unlike the federal rule and that of several states, in California the rule is that the finality required to invoke the preclusive bar of res judicata is not achieved until an appeal from the trial court judgment has been exhausted or the time to appeal has expired." Franklin & Franklin v. 7-Eleven Owners for Fair Franchising, 85 Cal. App.4th 1168, 1174, 102 Cal.Rptr.2d 770 (2000) (citation omitted). The California Court of Appeal issued the remittitur in Kay's case on March 4, 2004. The issuance of the remittitur indicates that the appellate process, including a potential petition for review to the California Supreme Court has been exhausted—and thus that the decision has become final. See Rare Coin Galleries, Inc. v. A-Mark Coin Co., 202 Cal.App.3d 330, 335-36, 248 Cal.Rptr. 341 (1988) ().
The first two requirements for claim preclusion are clearly...
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