Metropolitan News-Enterprise


Friday, March 20, 2015


Page 1


C.A., in Action Over Regulation of Cable Service, Says:

U.S. Law Preempts Statute on Costs for Failure to Admit


By a MetNews Staff Writer


The portion of the Civil Discovery Act authorizing recovery of expenses incurred in proving facts that an opposing party denied in response to a request to admit is preempted by federal law when the opposing party is a local government entity and the lawsuit deals with cable television service, the Court of Appeal for this district has ruled.

Div. Five Wednesday reversed Los Angeles Superior Court Judge Donna F. Goldstein’s award of costs of proof to Marcus Cable Associates, LLC, which does business as Charter Communications, and against the City of Glendale.

The award grew out of the city’s dispute with its cable franchisee, which saw the city sue Charter for realigning public, educational, and governmental, or PEG, channel numbers without the city’s consent. Charter cross-complained for declaratory relief as to a series of disagreements it had with Glendale over the franchise agreement, including a claim that the city was illegally using PEG access fees for purposes other than capital costs associated with PEG channel facilities.

The judge ruled for Charter on some issues and for the city on others, and the Court of Appeal affirmed last year in City of Glendale v. Marcus Cable Associates, LLC (2014) 231 Cal.App.4th 1359.

After Charter moved post-judgment for costs incurred in proving certain facts under Code of Civil Procedure §2033.420, the city opposed the motion on the ground of preemption under 47 U.S.C. §555(a), which limits a cable company’s remedies in litigation with a public entity over service to declaratory and injunctive relief.

Justice Richard Mosk, writing for the Court of Appeal, said the trial judge erred in granting part of the costs sought by Charter.

The federal statute, he noted, has been held to apply to awards of costs and attorney fees, and similarly preempt awards under §2033.420, Mosk said.

He reasoned:

“In the trial court, Charter sought monetary relief against Glendale under state law in the form of an award of reasonable attorney fees and costs under section 2033.420 as compensation for the expenses it incurred in proving certain matters it had requested Glendale to admit prior to trial.  The relief requested was directly related to its action against Glendale, which action, in turn, arose directly from Glendale’s regulation of Charter’s cable service within Glendale. The relief requested under section 2033.420 was therefore in the nature of damages, i.e., compensation in money recovered by a party for a loss or detriment it suffered through the acts of another.”

Mosk went on to say that §2033.420 awards are distinguishable from sanctions awards under other statutes, because “the award of costs of proof available under section 2033.420 is not an ‘instrument of discovery’; it is part of a procedural mechanism intended to expedite trial by reducing the number of triable issues that must be adjudicated,” and not a sanction or penalty for abuse of the discovery process.

The case is City of Glendale v. Marcus Cable Associates, LLC, 15 S.O.S. 1529.


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