NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD WOLF, No. 21-16649

Plaintiff-Appellant, D.C. No. 4:21-cv-00967-PJH

v.

MEMORANDUM*

CITY OF MILLBRAE, a government entity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding

Submitted February 16, 2023** San Francisco, California

Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.

Richard Wolf appeals from the district court’s dismissal of various claims

Wolf brought against the City of Millbrae (“the City”), the Millbrae Heights

Homeowners Association (“HOA”) and individual members of its board, and T-

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Mobile USA, Inc. (“T-Mobile”), for failure to state a claim. As the parties are

familiar with the facts of this case, we do not recite them here. We review de novo

and may affirm on any basis supported by the record. ASARCO, LLC v. Union

Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).

1. The district court properly dismissed Wolf’s claims against the City of

Millbrae for failing to provide a reasonable accommodation in violation of the

Americans with Disabilities Act (“ADA”).1 Title II of the ADA prohibits

disability-based “discrimination in the provision of public services.” Barden v.

City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002). Wolf’s complaint does

not plausibly allege that the City’s permit application approval process for wireless

communications facilities is a City “output that [Wolf] participates in or receives.”

Zimmerman v. Or. Dep’t of Just., 170 F.3d 1169, 1176 (9th Cir. 1999); cf. Hason v.

Med. Bd., 279 F.3d 1167, 1172–73 (9th Cir. 2002) (by contrast, medical licensing

constituted a public service to applicant for medical license). Because Wolf has

not alleged that he was denied a reasonable accommodation that would allow him

equal access to a public “service[], program[], or activit[y],” 42 U.S.C. § 12132,

Wolf’s Title II claim against the City was properly dismissed. See Zimmerman,

1 Wolf does not raise any argument challenging the district court’s dismissal of Wolf’s ADA Title III claims against the HOA because “public accommodation” does not include residential housing complexes. Wolf has thus waived his ADA claim against the HOA on appeal. See E.E.O.C. v. Peabody W. Coal Co., 773 F.3d 977, 990 (9th Cir. 2014).

2 170 F.3d at 1175–76.

Moreover, because the only connection alleged between the City and the cell

site is the permit approval process, and Wolf concedes that the radiofrequency

(“RF”) emissions from the cell site are within Federal Communications

Commission (“FCC”) limits, Wolf seeks accommodations that are inconsistent

with the Telecommunications Act of 1996 (“TCA”). See 47 U.S.C.

§ 332(c)(7)(B)(iv) (“No state or local government or instrumentality thereof may

regulate the placement, construction, and modification of personal wireless service

facilities on the basis of the environmental effects of radio frequency emissions to

the extent that such facilties comply with the Commission’s regulations concerning

such emissions.”). Where such direct conflict exists, we do not require the City to

make the “Hobson’s choice” of whether to violate the ADA or the TCA. See

Willis v. Pac. Maritime Ass’n, 244 F.3d 675, 681–82 (9th Cir. 2001).

2. The district court properly dismissed Wolf’s claims against the HOA, the

City of Millbrae, and T-Mobile for failing to provide a reasonable accommodation

in violation of the federal Fair Housing Act and California’s Fair Employment and

Equal Housing Act. We affirm the district court’s conclusion that Wolf failed to

plead a fair housing violation because he failed to allege that the requested

accommodation “may be necessary to afford [Wolf] equal opportunity to use and

enjoy [his] dwelling.” 42 U.S.C. § 3604(f)(3)(B); see United States v. Cal. Mobile

3 Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997). Although the district

court granted Wolf leave to amend these claims, Wolf chose not to do so and

appealed instead.

3. The district court properly dismissed Wolf’s claims against the City of

Millbrae and T-Mobile for violations of his fundamental rights to self-defense,

personal security, and bodily integrity, brought pursuant to 42 U.S.C. § 1983.

Wolf asserts that defendants’ application of § 332(c)(7)(B)(iv) of the TCA to his

detriment constitutes a substantive due process violation. It does not. See County

of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (“[T]he substantive component

of the Due Process Clause is violated by executive action only when it ‘can

properly be characterized as arbitrary, or conscience shocking, in a constitutional

sense.’” (quoting Collins v. Harker Heights, 503 U.S. 115, 128 (1992))).

4. Wolf’s private nuisance claims against T-Mobile, the HOA, and the

individual defendants were properly dismissed because federal law preempted

those claims. See Cohen v. Apple Inc., 46 F.4th 1012, 1027 (9th Cir. 2022)

(“[F]ederal law preempts state law . . . where ‘the state law “stands as an obstacle

to the accomplishment and execution of the full purposes and objectives of

Congress.”’” (quoting Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1179 (9th Cir.

2016))). Congress passed the TCA “[t]o promote competition and reduce

regulation in order to secure lower prices and higher quality services for American

4 telecommunications consumers and encourage the rapid deployment of new

telecommunications technologies.” Telecommunications Act of 1996, Preamble,

Pub. L. No. 104–404, 110 Stat. 56 (1996). Permitting nuisance suits based on RF

emissions within FCC limits would interfere with these goals. See 47 U.S.C.

§ 332(c)(7)(B)(iv) (preventing local governments from regulating the siting and

construction of cell sites based on effects of RF emissions where those emission

levels are within FCC limits); Cohen, 46 F.4th at 1031 (finding that FCC

regulations setting RF radiation limits “preempt state laws that impose liability

premised on levels of radiation below the limits set by the FCC”).

5. The district court properly dismissed Wolf’s breach of fiduciary duty

claims against the HOA and its board members. Wolf alleges that the HOA and its

board members breached their fiduciary duties to Wolf by concealing the precise

location of T-Mobile’s cell site, but that claim accrued when Wolf “discovered, or

in the exercise of reasonable diligence could have discovered, that facts had been

concealed.” Stalberg v. W. Title Ins. Co., 230 Cal. App. 3d 1223, 1230 (1991).

Wolf’s claim thus accrued when he learned the location of the cell site when it was

installed in 2010 and is time-barred. To the extent Wolf now argues that the HOA

and its members breached a fiduciary duty to him by renewing the lease with T-

Mobile in 2020, his complaint does not fairly raise a claim based on the lease

renewal. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (pleading must

5 “give the defendant fair notice of what the . . . claim is and the grounds upon which

it rests” (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957))).2

AFFIRMED.

2 The California League of Cities’ motion to become amicus curiae (Doc. 48) and the City of Millbrae’s request to take judicial notice (Doc. 38) are GRANTED.

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