Witteman v. Jack Barry Cable TV

• Decision Date: 29 July 1986
• Citation: 228 Cal.Rptr. 584,192 Cal.App.3d 1619
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 192 Cal.App.3d 1619 192 Cal.App.3d 1619 Mary M. WITTEMAN, Plaintiff and Appellant, v. JACK BARRY CABLE TV et al., Defendants and Respondents. Civ. B016024.

Page 584

228 Cal.Rptr. 584

Previously published at 192 Cal.App.3d 1619

192 Cal.App.3d 1619

Mary M. WITTEMAN, Plaintiff and Appellant, v. JACK BARRY CABLE TV et al., Defendants and Respondents.

Civ. B016024.

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

July 29, 1986.

Review Granted November 20, 1986.

Matthew H. Witteman, Los Angeles, and Chris Witteman, San Francisco, for plaintiff and appellant.

Irell & Manella, Gregory R. Smith and Sharon Oxborough, Los Angeles, for defendant and respondent, Jack Barry Cable TV.

Coblentz, Cahen, McCabe & Breyer and Richard R. Patch, San Francisco, as amicus curiae on behalf of Cal. Cable Television Ass'n.

L. THAXTON HANSON, Associate Justice.

On this appeal, we consider the circumstances under which cable television companies must obtain the consent of real property owners before extending their transmission lines across the owners' land. The issue is of importance to the cable television industry. ¹

This litigation arose when plaintiff Mary M. Witteman, as an individual and on behalf of "all others similarly situated" brought an action for trespass to real property. Named as defendants were General Telephone Company of California (General Telephone) and Jack Barry Cable TV (Barry). By first amended complaint, plaintiff stated two causes of action, seeking damages for trespass and alleging the need for injunctive relief.

After discovery but before class certification, defendants moved separately for summary judgment. The trial court awarded summary judgment to each of them. ² Plaintiff has appealed from the summary judgment awarded to defendant Barry. As we shall explain, we affirm the judgment entered below.

THE NOTICE OF APPEAL

On June 26, 1985, the trial court issued a minute order awarding summary judgment to defendant Barry and instructing defendant to prepare a judgment. On July 18, 1985, the trial judge signed the judgment and it was filed. On August 21, 1985, plaintiff filed a notice of appeal, appealing from "the judgment in favor of Jack Barry Cable TV upon its Motion for Summary Adjudication entered June 26, 1985, in the Minutes ... [of the trial court]." The appeal was timely, but the notice referred to the wrong order, the minute order rather than the subsequently entered judgment. We construe the notice as if taken from the judgment, and review the appeal on the merits. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 375, p. 378.)

STANDARD OF REVIEW

Code of Civil Procedure section 437c, subdivision (c), provides for granting a summary judgment motion "if 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." In reviewing the trial court's disposition of such a motion, we employ the standard described with particularity in Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 418, 42 Cal.Rptr. 449, 398 P.2d 785, which compels strict construction of affidavits and other materials offered by the moving party

in the trial court and liberal construction of similar documents submitted in opposition to the summary judgment motion. In the case at bench, plaintiff failed to file timely opposition to defendant Barry's summary judgment motion, and thus there are no opposition affidavits to construe. However, it appears that the facts which gave rise to this dispute are substantially uncontroverted, and the determination of whether plaintiff has stated a cause of action is one of law.

FACTUAL SUMMARY

On appeal, each party prepared an appendix in lieu of clerk's transcript, as permitted by rule 5.1, California Rules of Court. From the record as thus constituted, including documents of which judicial notice has been taken, we have ascertained the following facts.

Plaintiff acquired a fee simple interest in a lot and a residence located at 8135 Delgany Avenue, Playa del Rey, in 1958. At the time of acquisition, the property was subject to two easements.

The first easement had been acquired by the City of Los Angeles in 1929 from a predecessor in interest to plaintiff. The deed to the City recited that City had a permanent easement and right-of-way "to construct, reconstruct, maintain and operate lines of poles and wires and conduits and other necessary fixtures for the transmission of electrical energy over and across" the rear four feet of plaintiff's property, "TO HAVE AND TO HOLD ... unto said The City of Los Angeles, its successors and assigns forever." In 1978 the City enacted Los Angeles Ordinance 151, 016, granting defendant Barry a cable television franchise covering a portion of the City which includes plaintiff's property. Pursuant to this same ordinance, the City permitted Barry to use the City's easement over plaintiff's property to install and maintain its cable television equipment.

The second easement was created in 1957, when plaintiff's predecessor in interest quitclaimed to General Telephone an easement over the rear five feet of plaintiff's property, the General Telephone easement. Its purpose was for "constructing, adding to, maintaining, removing and repairing ... pole lines ... for the transmission of electrical energy and for telephone lines"; the quitclaim was "expressly contingent upon ... record ownership of a reserved easement in the Grantors, and [is] subject to any and all easements and rights of way heretofore remised ... by Grantors ..."

When plaintiff acquired title to the real property in 1958, the deed to her included a specific reservation with respect to the General Telephone easement over the rear five feet; the reservation, however, permitted plaintiff to utilize the surface of the rear five feet "provided such use does not interfere with the installation, operation, or maintenance of the ... utilities" in the easement.

In July 1979, General Telephone and Barry entered into a pole lease agreement whereby General Telephone, as Licensor, granted Licensee Barry permission to attach its cable television wires to General Telephone's poles in return for a rental fee for each pole. The agreement required Barry to "submit evidence satisfactory to Licensor of its authority to erect and maintain its equipment within public streets, highways and other thoroughfares and [to] secure any necessary license, permit or consent from Federal, State or Municipal authorities and from the owners of property now or hereafter required to construct and maintain such equipment at the location of poles of Licensor to which it desires to attach."

Subsequent to this agreement, Barry strung a cable wire across plaintiff's property and attached it to General Telephone poles located on the properties of adjacent landowners. According to the affidavit of Wayne L. Hanson, a licensed California Land Surveyor, the wire in question was within inches of the rear property line and well within both the four-foot City easement and the five-foot General Telephone easement. The wire was but one of numerous In 1982, the United States Supreme Court issued an opinion in Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868, holding that a New York statute requiring the nonconsenting owner of real property to permit installation of cable television facilities thereon constituted a taking of private property without compensation, prohibited by the United States Constitution.

wires crossing plaintiff's property and attached to General Telephone's poles.

The New York statute did not utilize public easements as does our state statute, Government Code section 53066, in obtaining access for cable television facilities from homeowners. Loretto did not express any opinion about such utilization but characterized its ruling as a narrow one; the court stated that, "We affirm the traditional rule that a permanent physical occupation of property is a taking." (Id., at 441, 102 S.Ct. at 3179.)

Plaintiff commenced this litigation in reliance, at least in part, on Loretto, contending that Barry had installed the cable wire over her property without obtaining her consent. Plaintiff sought monetary damages due to the claimed diminution of the value of her property as the result of the trespass and injunctive relief to compel Barry to remove the cable wire. The summary judgments granted the defendants and this appeal followed.

DISCUSSION

While this litigation was pending in the trial court, another division of this court considered a similar appeal from homeowners who claimed they had not consented to the installation of a cable television wire across their property, a wire installed with the permission of a telephone company possessing an easement thereon, and within the easement.

In Salvaty v. Falcon Cable Television (1985) 165 Cal.App.3d 798, 212 Cal.Rptr. 31, the Court of Appeal decided that the homeowners' second amended complaint against the cable television company and the telephone company had been properly dismissed below. It was held that the homeowners' consent was not required before cable television equipment could be installed on a telephone pole situated on the homeowners' property because the cable equipment use was "within the scope of the easement which the telephone company apportioned to the cable company." (Id., at 799, 212 Cal.Rptr. 31.) The Salvaty court noted that public policy strongly favored the expansion of cable television services to the public; this policy had been expressed by the Legislature when it enacted emergency legislation in 1980 (Pub.Util.Code, § 767.5) regulating the circumstances under which public utilities make available surplus space and excess capacity on poles and other equipment to cable television companies. (Id., at 801-802, 212 Cal.Rptr. 31.)

Salvaty also relied on a New York decision, Hoffman v. Capitol Cablevision Systems, Inc. (1976) 52 A.D.2d 313, 383 N.Y.S.2d 674, which had analyzed the nature of certain similar public utility easements and...