GTE Mobilnet of California Limited Partnership v. City of Berkeley

Background

GTE Mobilnet of California Limited Partnership, referred to in the opinion as Verizon, sued the City of Berkeley under the Telecommunications Act of 1996. Verizon alleged that Berkeley unlawfully denied its application to construct a personal wireless service facility. The claims alleged that Berkeley’s denial was not in writing, was not supported by substantial evidence, had the effect of prohibiting Verizon from providing personal wireless services, and did not occur within a reasonable period of time.

Berryman Reservoir Neighbors (BRN), a group of 10 individuals who live near the proposed cell tower and oppose the project, intervened in the case. BRN moved to dismiss Verizon’s First Amended and Supplemental Complaint under rules governing subject-matter jurisdiction and failure to state a claim. The court denied that motion in its entirety on September 28, 2021.

Motion for reconsideration

BRN asked for permission under Civil Local Rule 7-9 to file a motion asking the court to reconsider portions of its earlier order. BRN challenged the court’s refusal to consider three exhibits and its rejection of BRN’s argument that Verizon lacked standing, meaning the legal ability to bring the case in federal court.

The court explained that reconsideration is an extraordinary remedy. Under the local rule, permission may be based on a previously unknown material difference in fact or law, new material facts or a change in law, or a manifest failure by the court to consider material facts or dispositive legal arguments previously presented. A party may not use reconsideration simply to repeat arguments already made.

Court’s reasoning

The court held that BRN’s exhibits were not properly authenticated as required by the court’s local rules and the Federal Rules of Evidence. The court rejected BRN’s argument that its counsel had authenticated the exhibits in an earlier filing, explaining that counsel was responsible for submitting the materials properly and that the court was not required to search the docket for them. The court also noted that BRN’s counsel had previously failed to comply with local motion-practice rules.

The court separately rejected BRN’s argument that the lease should have been considered through judicial notice or incorporation by reference. Judicial notice allows a court to accept certain facts that are not reasonably disputed. Incorporation by reference can allow consideration of a document outside the complaint when the plaintiff extensively refers to it or the document forms the basis of the claim. The court said BRN had not adequately developed its judicial-notice argument and that the complaint did not refer extensively to the lease or rely on it as the basis of Verizon’s claims.

The court also rejected BRN’s argument that the court had overlooked a material fact concerning whether the parties’ factual issues were undisputed. The court said BRN had taken Verizon’s statement out of context and had ignored its own acknowledgment that the parties disputed the significance of statements attributed to an East Bay Municipal Utility District official, including the official’s role and authority.

Finally, the court stated that it had considered BRN’s argument that a lease provision giving the utility district final authority to reject the project defeated Verizon’s standing. The court found that argument unclear and unpersuasive.

Disposition

The court concluded that BRN had not shown a manifest failure to consider material facts or dispositive legal arguments. Judge Donna Ryu therefore denied BRN’s motion for leave to file a motion for reconsideration.