Zhi Wang v. City of Pleasanton

FILED
NOT FOR PUBLICATION MAY 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHI G. WANG and XIANGHUI YAN, No. 10-16243
Plaintiffs - Appellants, D.C. No. 3:09-cv-05838-JSW
v.
MEMORANDUM*
CITY OF PLEASANTON and
COMCAST CABLE
COMMUNICATIONS, LLC,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted May 11, 2011
San Francisco, California
Before: B. FLETCHER and THOMAS, Circuit Judges, and ROSENTHAL,
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for Southern Texas, Houston, sitting by designation.
Zhi G. Wang and Xianghui Yan appeal the district court’s grant of summary
judgment against them and subsequent denial of their motion for reconsideration.
Wang and Yan sued Comcast Cable Communications for digging a trench and
installing cable in the public use easement in their front yard. Wang and Yan also
sued the City of Pleasanton, which had awarded Comcast the cable franchise.
Because the parties are familiar with the factual and procedural history of the case,
we need not recount it here. We affirm.
This appeal is based on arguments and evidence advanced for the first time
when Wang and Yan moved to alter or amend the judgment under Rule 59(e). The
district court refused to consider their newly raised grounds. This refusal was not
an abuse of discretion. Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5
(2008); Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
The record also shows that the result would have been the same had the
district court reached the merits of the motion to alter or amend the judgment. The
federal and state law grounds that Wang and Yan urge are not a basis for the relief
they seek, given the broad language of the easement that burdens their property and
the fact that Comcast had a cable franchise from the City of Pleasanton. Federal
law allows cable franchisees, such as Comcast, to use easements “dedicated for
compatible uses.” 47 U.S.C. § 541(a)(2); Cable Ariz. Corp. v. Coxcom, Inc., 261
2
F.3d 871, 872 (9th Cir. 2001). The broad easement at issue includes uses for
“poles, wires, conduits, . . . and gas, water and heat mains and all public utilities.”
Cable is compatible with these uses. See Cable Ariz. Corp., 261 F.3d at 875 n.3.
Wang and Yan are incorrect that Comcast’s municipally authorized use of the
easement is a taking under Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419 (1982). Loretto held that physical intrusions may be takings, but Loretto
did not involve an authorized use of a broad easement. This court and others have
limited § 541(a)(2)’s reach to public use easements to make the statute consistent
with Loretto. Cable Ariz. Corp., 261 F.3d at 876–77. Comcast’s use of the public
use easement is not, as a matter of law, an unconstitutional taking.
The result is the same under state law. See Salvaty v. Falcon Cable
Television, 165 Cal. App. 3d 798, 802–05 (Cal. Ct. App. 1985). The argument that
the City abandoned the easement or that its use was limited because it was used
only to plant street trees is unavailing. Under California law, lack of a particular
use is insufficient to show abandonment of a public use easement. See Sharp v.
City of San Diego, No. D052315, 2009 WL 1133094, at *2 (Cal. Ct. App. Apr. 28,
2009) (citing cases).
Neither attorney suggested that Wang and Yan were raising a claim that
Comcast had failed to restore their front yard after working in the easement to lay
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the cable. We note that during argument, Comcast’s attorney stated that it would
work with Wang and Yan to resolve any issues that might remain about repairing
their property because of the work that was done.
AFFIRMED.
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