WITTEMAN v. JACK BARRY CABLE TV

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

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

Civ. B016024.

Decided: July 29, 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.

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

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.

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 had turned to the legal principles set forth in 5 Restatement of the Law, Property, section 493, particularly subdivisions (c) and (d).  Hoffman ascertained that such easements were easements in gross, exclusive vis-a-vis the grantor, and thus apportionable.  Salvaty adopted the same reasoning and approach and also approved Hoffman for emphasizing that the cable equipment in question “would not impose an additional burden on the servient tenement;  was consistent with the policy of broadly interpreting easements to meet progressive inventions;  and that cable television rendered a valuable educational and public service.”   The Loretto decision was distinguished on the basis that it did not involve an easement.  (Id., 165 Cal.App.3d at 804–805, 212 Cal.Rptr. 31.)

 We note that in California easements involving the right-of-way have been considered “easements in gross” since 1872.  (See Civ. Code, § 802.)   They are, in other words, property rights which are not attached to any particular land as the dominant tenement (the holder of which has the right to the easement) but do create a servient tenement, a burden on the land upon which the easement has been granted.   Easements conveyed to public utilities are in the same category.   They have been deemed “exclusive” vis-a-vis their grantors who had no intention to provide utility services, and no management or control rights concerning the utility's easement use.   This factor, in turn, has led to the conclusion of apportionability, without obtaining any consent of the holder of the servient estate—in these cases, the homeowners.

On this appeal, plaintiff Witteman makes several arguments seeking to distinguish Salvaty or to persuade us that it was wrongly decided.   In addition, plaintiff addresses some broad public policy issues with respect to cable television and the industry in general.   We shall briefly discuss the contentions made.

I.

Plaintiff contends that Salvaty is distinguishable from the case at bench and that its holding should not be applied.   The argument is without merit.

 Plaintiff suggests that the fact that the instant case involved two easements rather than one renders it distinguishable from Salvaty.   It is a distinction without a difference.   Plaintiff argues that the fact that two easements are involved negates the characterization of them as “exclusive,” and thus also negates apportionability.   Plaintiff, however, assigns a different meaning to the term “exclusive” than that employed in the decisional law which has considered cable television's use of public utility easements.   In Henley v. Continental Cablevision of St. Louis County, Inc. (Mo.App.1985) 692 S.W.2d 825, 828, the Missouri court discussed a situation where two public utility easements coexisted on the same land.   Rejecting the argument of nonexclusivity, the court stated that “Thus, insofar as it related to the apportionability of an easement in gross, the term ‘exclusive’ refers to the exclusion of the owner and possessor of the servient tenement from participation in the rights granted, not to the number of different easements in or over the same land.”  (Emphasis added.)

The fact that there are two easements involved in the instant case merely broadens the inquiry from traditional real property rules to specific, independent grounds for affirming each easements' apportionability.   Defendant Barry sought and received the permission of both City and General Telephone before installing its cable transmission wire.   With respect to the City's easement, Government Code section 53066 provides, in pertinent part:  “Any city or county in the State of California may, pursuant to such provisions as may be prescribed by its governing body, authorize by franchise or license the construction of a community antenna television system.   In connection therewith, the governing body may prescribe such rules and regulations as it deems advisable to protect the individual subscribers to the services of such community antenna television system.   The award of the franchise or license may be made on the basis of quality of service, rates to the subscriber, income to the city, county or city and county, experience and financial responsibility of the applicant plus any other consideration that will safeguard the local public interest, rather than a cash auction bid․  Any cable television franchise or license awarded by a city or county or city and county pursuant to this section may authorize the grantee thereof to place wires, conduits and appurtenances for the community antenna television system along or across such public streets, highways, alleys, public properties, or public easements of said city or county or city and county.   Public easements, as used in this section, shall include but shall not be limited to any easement created by dedication to the city or county or city and county for public utility purposes or any other purposes whatsoever.”  (Emphasis added.)   This section was enacted in 1963, and has been amended from time to time since without materially altering the main thrust of the legislation.   It demonstrates legislative recognition of the importance of public easements to the cable television industry and specifically authorizes the type of apportionability City has adopted in extending franchise rights to cable television companies such as Barry.

With respect to the General Telephone easement, it was created long after the City easement, included an extra foot, and by its language contemplated underground installations as well as surface installations.   Statutory authority for characterizing it as apportionable is found in Public Utilities Code section 767.5, which clearly views apportionment of surplus space and excess capacity for pole attachments as a public utility service delivered by public utilities to cable television corporations.   While Salvaty did not expressly rely on either Government Code section 53066 or Public Utilities Code section 767.5, basing its decision on basic traditional real property law, these statutes afford additional ground for recognizing apportionability and reflect the legislative understanding of the common law rules and their applicability to the expansion of cable television services.

Another important aspect of the Salvaty holding was its response to the argument that cable television equipment was not within the scope of the easement therein because the easement's use was limited to telephone and electric light and power transmission.  Salvaty characterized the addition of cable television transmission as “part of the natural evolution of communications technology.”  (Salvaty v. Falcon Cable Television, supra, 165 Cal.App.3d 798, 803, 212 Cal.Rptr. 31;  and see Faus v. City of Los Angeles (1967) 67 Cal.2d 350, 355–358, 62 Cal.Rptr. 193, 431 P.2d 849.)   The observation of the Henley court is also pertinent here:  “The unsurprising fact that the drafters of the 1922 easements did not envision cable television does not mandate the narrow interpretation of the purposes of the conveyance of rights and privileges urged by plaintiffs.   The expressed intention of the predecessors of plaintiff trustees was to obtain for the homeowners in the subdivision the benefits of electric power and telephonic communications.   Scientific and technological progress over the ensuing years [has] added an unforeseen dimension to such contemplated benefits, the transmission by electric impulse of visual and audio communication over coaxial cable.   It is an inescapable conclusion that the intention of plaintiffs' predecessors was the acquisition and continued maintenance of available means of bringing electrical power and communication into the homes of the subdivision.   Clearly, it is in the public interest to use the facilities already installed for the purpose of carrying out this intention to provide the most economically feasible and least environmentally damaging vehicle for installing cable systems.”  (Henley v. Continental Cablevision, supra, 692 S.W.2d 825, 829, 62 Cal.Rptr. 193, 431 P.2d 849.)

We conclude that the reasoning of Salvaty is sound.   There are now a substantial number of cases in other jurisdictions which have reached similar results:  Hoffman, supra;  Henley, supra;  Jollif v. Hardin Cable Television Co. (1971) 26 Ohio St.2d 103, 55 Ohio Ops.2d 203, 269 N.E.2d 588;  see also Clark v. El Paso Cablevision, Inc. (1971) (Tex.Ct. of App.) 475 S.W.2d 575.   The appellants in Salvaty were denied review by the California Supreme Court on May 15, 1985.3

II.

Plaintiff also contends that the summary judgment in this action must be reversed because the issues of appropriate interpretation of the easements and the burden to the homeowners involve questions of fact, rather than law, and can only be resolved by further proceedings in the trial court.   Defendants argue that the language of the easements was sufficiently broad to cover the use in which it is currently engaged, and further, that the scope of the easements encompasses normal technological evolution as a matter of law.

 While we agree with defendants' position in this regard, we point out also that the interpretation of writings, such as deeds granting easements, is essentially a question of law, when no extrinsic evidence has been admitted concerning the meaning of the writings.   An appellate court exercises an independent function of review in such situations.  (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 292 et seq., pp. 303–306.)   In the case at bench, no extrinsic evidence was offered by way of opposition to the summary judgment motion, in the form of affidavits or other materials, to persuade the trial court to make the narrow interpretation of the deeds in question plaintiff supports.

III.

Plaintiff's brief contains, finally, a number of arguments directed toward public policy considerations that might be material in a political debate about the amount of governmental regulation necessary or otherwise with respect to the cable television industry, but are immaterial to this appeal.

The thrust of plaintiff's argument appears to be that the cable television industry consists of private enterprises benefitting from the services extended by governmentally-regulated public utilities—without acquiring the status of public utilities themselves—and that the industry's resistance to regulation is not only a historical fact but opens the door to various kinds of abuse.

As important and far-reaching as these concerns are, they are immaterial to our decision here, and many of them are more appropriately addressed to our Legislature or to Congress.

Plaintiff also relies on the issues raised in Preferred Communications, Inc. v. City of Los Angeles (9th Cir.1985) 754 F.2d 1396 concerning the extent to which municipalities can restrict access to cable facilities and observe rights guaranteed by the First Amendment of the United States Constitution.   It is argued that if the right to restrict access is constitutionally limited, homeowners may well be faced in the future with a myriad of competing cable television wires rather than the one wire under consideration here.   The Preferred case has now been remanded by the United States Supreme Court for the development of more facts. (City of Los Angeles and Dept. of Water and Power v. Preferred Communications, Inc. (1986) –––U.S. ––—, 106 S.Ct. 2034, 90 L.Ed.2d 480.)   There are no facts before us that necessitate a response to plaintiff's speculative projection.

In summary, apportionment of use to defendant Barry by the holders of the easements involved in the present case, without the consent of the homeowner-possessor of the servient tenement, is supported by basic real property law principles, present statutory law, and a growing body of decisional law.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   On April 16, 1986, this court granted the request of the California Cable Television Association (CCTA) to file an amicus curiae brief in the case at bench.   The brief was filed May 30, 1986.

2.   Summary judgment was awarded General Telephone on February 15, 1985.   Another appeal is apparently pending, but the matter before us concerns only the cable television company, Barry.

3.   Plaintiff has cited two cases in which appellate courts have reached the opposite conclusion:  Consolidated Cable Utilities Inc. v. City of Aurora (1982) 108 Ill.App.3d 1035, 64 Ill.Dec. 464 439 N.E.2d 1272 and Devon-Aire Villas Homeowners Ass'n No. 4, Inc. v. Americable Associates, Ltd. (Fla.App.1985) 490 So.2d 60 rehg. den., motion den. (Fla.App.1986).   We recognize the fact that there are differing opinions on the rights and responsibilities that should govern the expansion of cable television facilities.

L. THAXTON HANSON, Associate Justice.

SPENCER, P.J., and EPSTEIN, J.*, concur.