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City of Glendale v. Marcus Cable Associates, LLC

California Court of Appeals, Second District, Fifth Division

March 18, 2015

CITY OF GLENDALE, Plaintiff, Cross-defendant and Appellant,
v.
MARCUS CABLE ASSOCIATES, LLC, Defendant, Cross-complainant and Appellant.

APPEALS from a postjudgment order of the Superior Court of the County of Los Angeles, No. EC051903 Donna Fields Goldstein, Judge.

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COUNSEL

Rutan & Tucker, William M. Marticorena, Jeffrey T. Melching and Michelle D. Molko for Plaintiff, Cross-defendant and Appellant.

Coblentz Patch Duffy & Bass, Richard R. Patch, Ann E. Johnston and Frederick C. Crombie for Defendant, Cross-complainant and Appellant.

OPINION

MOSK, Acting P. J.

INTRODUCTION

As explained below, pursuant to Code of Civil Procedure section 2033.420 (section 2033.420), under certain circumstances, a party to a civil action that denies a pretrial request for admission without a reasonable basis can be ordered to pay to the propounding party the reasonable expenses incurred-including attorney fees and costs-in proving the matter covered by the request (costs of proof). Plaintiff, appellant, and cross-respondent City of Glendale (Glendale) appeals from a postjudgment order granting, in part, a motion by defendant, respondent, and cross-appellant Marcus Cable Associates, LLC, doing business as Charter Communications, Inc. (Charter) to recover such costs of proof under section 2033.420. Charter cross-appeals from that portion of the trial court’s order denying, in part, its motion.

We hold that the limitation on remedies in 47 United States Code section 555a(a) (section 555a(a))[1] precluded the trial court from awarding Charter costs of proof under section 2033.420. We therefore reverse that portion of the trial court’s order granting, in part, Charter’s motion for recovery of costs of proof[2] and remand the matter to the trial court with instructions to enter a new order denying Charter’s motion for recovery of costs of proof in its entirety.

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BACKGROUND

This action arose from a dispute between Glendale and Charter over whether Charter, as Glendale’s cable service provider, could realign Glendale’s public, educational, and government (PEG) channel numbers without Glendale’s consent. Glendale initiated the litigation by filing a complaint and a request for a temporary restraining order preventing Charter from realigning its PEG channel numbers. In its operative cross-complaint, Charter sought declarations that it had no obligation to provide Glendale with free video programming and cable modem services or with free institutional network (I-Net) services; it was entitled to recover possession and control of the I-Net and damages for wrongful possession and detention of the I-Net; it had the right to realign Glendale’s PEG channel numbers; Glendale was unlawfully using PEG access fees; and it had a right to offset past PEG access fee overpayments against future franchise fee payments.

After the trial court’s rulings on the parties’ summary judgment and summary adjudication motions, the following issues remained for trial on the merits: Charter’s request for a declaration concerning its continuing duty to provide free I-Net services; Charter’s claim for recovery of the I-Net and damages for past use of the I-Net; Glendale’s claim that Charter had given Glendale a permanent right of possession or use of the I-Net; and Charter’s request for a ...


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