1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

10 GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, Case No. 22-cv-00347-NC 11 Plaintiff, ORDER GRANTING SUMMARY 12 JUDGMENT IN FAVOR OF v. DEFENDANT AND INTERVENOR- 13 DEFENDANTS

CARMEL-BY-THE-SEA, CITY OF,

14 Re: ECF 11 Defendant, and 15 16 LA PLAYA CARMEL HOTEL, LLC, and STOP CELL TOWERS IN 17 CARMEL NEIGHBORHOODS, 18 Intervenor-Defendants. 19 20 This suit arises from Plaintiff GTE Mobilnet of California LP (d/b/a Verizon 21 Wireless)’s appeal of Defendant City of Carmel-by-the-Sea’s denial of its application for a 22 wireless facility on Carmelo Street in Carmel-by-the-Sea, California. Verizon alleges that 23 the City violated the Telecommunications Act of 1996 (TCA) and their settlement 24 agreement when it did not timely deliver a written denial notice to Verizon. The City 25 contests Verizon’s interpretation that the TCA requires delivery. Because the Court finds 26 that the TCA does not have a delivery requirement, and the City properly issued the denial, 27 the Court GRANTS summary judgment in favor of the City and Intervenor-Defendants La 1 I. BACKGROUND 2 A. Factual Background 3 As alleged in the complaint, starting in 2017, Verizon applied to the City to 4 establish five small wireless facilities in the residential area of Carmel-by-the-Sea; the City 5 denied all of the applications. ECF 1 ¶ 28. Verizon then attempted to work with the City 6 to redesign the network and apply for new facility sites, including the Carmelo site. Id. 7 ¶ 29. On April 7, 2021, Verizon submitted the Carmelo application. Id. ¶ 31. 8 After two hearings, the City denied the Carmelo application. Id. ¶ 32. Verizon 9 appealed and agreed with the City to toll the TCA shot clock—the time within which the 10 City was required to issue a final action on an application—to December 17, 2021. Id. 11 ¶ 33. Before the City held its City Council appeal hearing on December 7, 2021, it posted 12 the hearing’s agenda, including the draft resolution denying the Carmelo application 13 appeal, to its public website. ECF 36-1 (Wright Dep.) 45:12–22; ECF 11-2 (Wright Decl.) 14 ¶ 2. At the hearing, the City denied Verizon’s appeal and approved the draft Denial 15 Resolution with minor amendments. ECF 36-1 (Potter Dep.) 31:12–14. The City posted a 16 video of the hearing on its public website the next day. Wright Decl. ¶ 2. 17 On December 9, 2021, Pete Shubin, a Verizon representative, emailed Brandon 18 Swanson, the City’s Director of Community Planning and Building, asking for the 19 finalized Denial Resolution, signed or unsigned. ECF 36-1 at 89. Swanson responded that 20 “we will work on getting it to you soon,” copying Acting City Clerk Ashlee Wright on the 21 email. Id. Shubin’s request did not comply with the City’s publicly posted instructions on 22 how to make a Public Records Act request. Wright Dep. 45:2–15. Wright did not follow 23 up on his request. Id. at 46:13–20. 24 On December 14, 2021, Dave Potter, the City’s mayor, signed the finalized Denial 25 Resolution, which added a sentence reflecting Verizon’s oral testimony and an additional 26 piece of evidence for denial. Wright Decl. ¶ 3; compare ECF 11-1 at 9, with ECF 11-2 at 27 14. Wright uploaded the signed Denial Resolution to the City’s internal server, which 1 Dep. 70:23–71:6. Wright did not deliver the Denial Resolution to Shubin or any other 2 Verizon representative, nor did Verizon follow up on its email with Swanson or Wright. 3 Wright Dep. 24:17–20, 59:5–10. 4 That same day, Verizon’s outside counsel emailed Brian Pierik, the Carmel-by-the- 5 Sea City Attorney, to inform him that Verizon would be “willing to defer litigating the 6 denials of its proposed small wireless facilities at least through next month” and proposed 7 that “no statute of limitations to challenge the denials of the above-captioned applications 8 shall expire prior to June 6, 2022;” the City rejected Verizon’s request to defer litigation. 9 Wright Dep. 77:8–79:25. 10 B. Procedural Background 11 On January 18, 2022, Verizon sued the City for violation of the TCA shot clock and 12 breach of the parties’ settlement agreement requiring strict compliance with the shot clock. 13 ECF 1 at 9–10. In its complaint, Verizon also requested expedited review of its appeal. 14 Id. at 11. On February 17, the City moved to dismiss the complaint for failure to state a 15 claim and filed a request for judicial notice. ECF 11; ECF 11-1. That same day, La Playa 16 Carmel Hotel and STOP Cell Towers in Carmel Neighborhoods moved to intervene in the 17 case. ECF 10. After the Court granted the motion to intervene, the Intervenor-Defendants 18 joined the City’s motion to dismiss. ECF 22; ECF 23. Intervenor-Defendants also filed a 19 request for judicial notice. ECF 25. At the March 30, 2022 hearing, the Court converted 20 the motion to dismiss into a motion for summary judgment under Rule 12(d) given the 21 City’s and Intervenor-Defendants’ requests for the Court to consider additional documents. 22 ECF 29. The Court allowed each side to file a supplemental brief with evidence or 23 arguments in support of the converted motion for summary judgment. ECF 36–39. 24 All parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. 25 § 636(c). ECF 8; ECF 15; ECF 16. 26 II. LEGAL STANDARD 27 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 1 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 2 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 3 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 4 motion under Rule 12(b)(6) can be converted to a motion for summary judgment under 5 Rule 12(d) if “matters outside the pleadings are presented to and not excluded by the 6 court” and all parties are given a “reasonable opportunity to present all the material that is 7 pertinent to the motion.” Fed. R. Civ. P. 12(d). 8 Summary judgment may be granted only when, drawing all inferences and 9 resolving all doubts in favor of the nonmoving party, there is no genuine dispute as to any 10 material fact. Fed. R. Civ. P. 56(a); Tolan v. Cotton, 572 U.S. 650, 651 (2014); Celotex 11 Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under governing 12 substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 13 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if “the evidence is 14 such that a reasonable jury could return a verdict for the nonmoving party.” Id. Bald 15 assertions that genuine issues of material fact exist are insufficient. Galen v. Cnty. of L.A., 16 477 F.3d 652, 658 (9th Cir. 2007). 17 The moving party bears the burden of identifying those portions of the pleadings, 18 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. 19 Celotex, 477 U.S. at 323. Once the moving party meets its initial burden, the nonmoving 20 party must go beyond the pleadings, and, by its own affidavits or discovery, set forth 21 specific facts showing that a genuine issue of fact exists for trial. Fed. R. Civ. P. 56(c); 22 Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1004 (9th Cir. 1990) (citing Steckl v. 23 Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)). All justifiable inferences, however, 24 must be drawn in the light most favorable to the nonmoving party. Tolan, 572 U.S. 651 25 (citing Liberty Lobby, 477 U.S. at 255). 26 III. JUDICIAL NOTICE & INCORPORATION BY REFERENCE 27 The City requests judicial notice of: (1) Resolution No. 2021-084, (2) Resolution 1 38. It also requests the incorporation by reference of the Declaration of Ashlee Wright. 2 ECF 27. Intervenor-Defendants request judicial notice of: (1) a copy of Chapter 17.54 of 3 the City of Carmel-by-the-Sea’s Municipal Code; and (2) City of Carmel-by-the-Sea City 4 Council Staff Report dated October 6, 2020 regarding Resolution 2020-071. ECF 25. 5 Federal Rule of Evidence 201 allows a court to take judicial notice of “a fact that is 6 not subject to reasonable dispute” because it is “generally known” within the court’s 7 jurisdiction or can be “accurately and readily determined from sources whose accuracy 8 cannot be reasonably questioned.” If the documents presented are not relevant to the legal 9 issues before the court, the court can decline to take judicial notice of them. See Flick v. 10 Liberty Mut. Fire Ins. Co., 205 F.3d 386, 399 n.7 (9th Cir. 2000). 11 The Court finds that Resolution No. 2021-084 is judicially noticeable. See Colony 12 Cove Prop., LLC v. City of Carson, 640 F.3d 948, 954 n.3 (9th Cir. 2011) (allowing 13 judicial notice of a city council resolution). The Court finds that judicial notice is not 14 appropriate for: Resolution 2020-071, the executed Verizon Small Cell Facilities 15 Agreement, Chapter 17.54 of the City of Carmel-by-the-Sea’s Municipal Code, and the 16 City of Carmel-by-the-Sea City Council Staff Report because they are not relevant to the 17 legal issues of timely action under the TCA before the Court. See Flick, 205 F.3d at 399 18 n.7. The Court also declines to incorporate Wright’s Declaration by reference because the 19 Declaration does not “form the basis of [Verizon’s] claim.” See U.S. v. Ritchie, 342 F.3d 20 903, 908 (9th Cir. 2003). 21 However, because the City’s motion to dismiss was converted to a motion for 22 summary judgment, the Court gave the parties a “reasonable opportunity to present all the 23 material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). The Court now considers 24 whether Resolution 2020-071, the Verizon Small Cell Facilities Agreement, Chapter 17.54 25 of the City of Carmel-by-the-Sea’s Municipal Code, the City of Carmel-by-the-Sea City 26 Council Staff Report, and the Declaration of Ashlee Wright are admissible evidence. See 27 Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). Verizon only 1 contests the Declaration of Ashlee Wright.1 ECF 20-1. The Declaration was “made on 2 personal knowledge, set out facts that would be admissible in evidence, and show that the . 3 . . declarant is competent to testify on the matter stated.” Fed. R. Civ. P. 56(c)(4); Wright 4 Decl. ¶ 1. Thus, even if not judicially noticeable, the Court considers all requested 5 documents in its summary judgment evaluation as admissible evidence. 6 IV. DISCUSSION 7 Verizon argues that the Court must deny the City’s summary judgment motion 8 because the City violated the shot clock and the parties’ settlement agreement by not 9 providing Verizon a written denial of its application, as the Telecommunications Act of 10 1996 (TCA) requires. See ECF 1 at 8–10; ECF 36 at 6. The City and Intervenor- 11 Defendants counter that the TCA does not require municipalities to deliver a written denial 12 to applicants. ECF 37 at 1. The City argues that it fulfilled the TCA’s requirement to take 13 timely action twice: once, when it posted the draft Denial Resolution and video recording 14 of the December 7 hearing online; and again, when it made the finalized Denial Resolution 15 publicly available through a Public Records Act request. ECF 37 at 7. 16 The TCA provides that a municipality “shall act on any request for authorization to 17 place, construct, or modify personal wireless service facilities within a reasonable period 18 of time after the request is duly filed with such a government.” 47 U.S.C. 19 § 332(c)(7)(B)(ii). The Federal Communications Commission later clarified that a 20 “reasonable period of time” is ninety days from the request. City of Arlington v. F.C.C., 21 569 U.S. 290, 295 (2013). If a municipality denies a request, the TCA requires that the 22 denial “be in writing and supported by substantial evidence contained in a written record.” 23 47 U.S.C. § 332(c)(7)(B)(iii). The requestor has “30 days after [a municipality’s] action or 24 failure to act [to] commence an action in any court of competent jurisdiction.” 47 U.S.C. 25 § 332(c)(7)(B)(v). 26 After reviewing the evidence, the Court finds that the City fulfilled the TCA’s 27 1 written denial and substantial evidence requirements and took timely action. Verizon’s 2 brief focuses on one argument: that the City incorrectly argues that the “TCA allows [the 3 City] to ‘issue’ it’s written denial in secret and then conceal it from the applicant for 4 months.” ECF 20 at 6. In doing so, Verizon relies on its interpretation that the TCA 5 requires “both the written denial and the reasons . . . be communicated to the applicant” to 6 constitute a final action. ECF 20 at 6 (emphasis in original). 7 The Supreme Court has noted that in the TCA there is “no verb at all to describe the 8 conveying of information from a locality to an applicant,” and thus no notification burden 9 on municipalities. T-Mobile S., LLC v. City of Roswell, Ga., 574 U.S. 293, 306 (2015); see 10 also Cap. Telecom Holdings II, LLC v. Grove City, Ohio, 403 F. Supp. 3d 643, 651 (S.D. 11 Ohio 2019) (making it the “municipality’s prerogative on how to issue the written 12 decision” because the TCA does not mandate “how municipalities issue the denial”). 13 While Verizon correctly asserts that Roswell holds that “both the written denial and 14 reasons must be communicated to the applicant,” Verizon improperly equates 15 communicated with delivered. ECF 20 at 6 (emphasis in original). Contrary to Verizon’s 16 expanded reading, Roswell simply states that a denial must be “provided or made 17 accessible to the applicant.” 574 U.S. at 295. 18 For the same reasons that publication of a city council’s meeting minutes satisfies 19 Roswell’s requirements, the City’s posting of the draft Denial Resolution and video 20 recording of the December 7 hearing complied with the TCA. See Cap. Telecom, 403 F. 21 Supp. 3d at 653. Verizon does not contest the fact that the Denial Resolution was in 22 writing, public, or posted before the agreed upon shot clock ran on December 17, 2021. 23 Verizon instead argues that the City cannot rely on the video of the December 7 hearing or 24 a Verizon representative’s attendance at the hearing as a “written notice of denial.” ECF 25 36 at 6. However, this argument is irrelevant as the City proffers the “draft denial 26 resolution in combination with the video recording.” ECF 37 at 6 (emphasis added). 27 Similarly, the final Denial Resolution was properly issued before the agreed-upon 1 as of December 14, 2021. ECF 37 at 7. Verizon does not dispute that the Denial 2 Resolution was signed before the shot clock expired; instead, it argues that the Denial 3 Resolution was issued in secret and concealed from Verizon for months. ECF 36 at 2. To 4 support this claim, Verizon provides evidence that the City uploaded the Denial Resolution 5 to its internal server, did not send it to any Verizon representatives, and did not date it. 6 Wright Dep. 24:17–21 41:22–42:6; Denial Resolution. The Court does not find that these 7 facts prevented Verizon from accessing the Denial Resolution. Although the Denial 8 Resolution was stored on an internal server, the public, including Verizon, was able to 9 access it though a Public Records Act request. Wright Dep. 45:2–4, 59:5–10, 71:7–72:1; 10 Wright Decl. ¶ 4. Despite the fact that the instructions for making a Public Records Act 11 request were posted on the City’s public website, Verizon did not make a request. Id. 12 Verizon further claims that the City secretly issued and concealed the Denial 13 Resolution as evidenced by an email exchange where a Verizon representative requested 14 the Resolution and the City “promised” to provide it when it was available but never did. 15 ECF 20 at 6, 7. Verizon does not cite any authority to support its argument that the City’s 16 actions rose to the level of an improper concealment. Ultimately, the Court is not 17 persuaded that this email exchange supports Verizon’s claim of concealment because 18 Verizon did not request the document through the process identified on the City’s website 19 and Verizon never followed up on its email request. Wright Dep. 24:17–20, 59:5–10. 20 In fact, Verizon’s email exchange demonstrates that Verizon did have timely notice 21 of the Denial Resolution. See ECF 20-3 at 2 (requesting a “copy of the Resolution of 22 Denial for the Verizon Wireless Carmelo project” on December 9, 2021). Verizon’s 23 awareness of the Denial Resolution is further demonstrated by the email exchange—on the 24 same day the City issued the Resolution—between its outside counsel and the City 25 regarding its willingness to “defer litigating the denials.” Wright Dep. 77:8–79:25. 26 Although the Denial Resolution is undated, Verizon appealed it within the requisite thirty 27 days. ECF 20 at 4; ECF 1 at 1. Thus, Verizon was “not prejudiced by any delay.” See 1 |} (finding that BellSouth was not prejudiced because it knew its permit was denied and filed 2 || atimely appeal despite not receiving a written notice from the city council). 3 Even viewing the evidence in the light most favorable to Verizon, there is no 4 || genuine dispute that Verizon had timely notice of the City’s decision on its Carmelo 5 || application. Accordingly, the Court GRANTS summary judgment in favor of the City and 6 || Intervenor-Defendants on this issue.” 7 Verizon’s complaint only asserts two claims against the City and both rely on a 8 || finding that Verizon did not have timely notice of the City’s final action. See ECF 1 at 8— 9 || 10; see also ECF 11 at 9. Thus, because the Court determines that Verizon did have timely 10 || notice of the City’s final action, there are no remaining claims in the complaint. 11 || ¥. CONCLUSION 12 For the foregoing reasons, the Court GRANTS summary judgment in favor of the

13. || City and Intervenor-Defendants. Verizon’s complaint is therefore DISMISSED with 8 14 || prejudice. 15

Q 16 IT IS SO ORDERED.

i 17 |] pated: sune 30,2002 □□□

NATHANAEL M. COUSINS

19 United States Magistrate Judge 20 21 22 23 24 25 26 27 |i 2 Because the Court grants summary judgment on the timely notice argument, it need not 9g || address Intervenor-Defendants’ additional arguments that the complaint is time-barred and unripe. ECF 39 at 1.