Armstrong v. County of Placer

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 | Tylor Armstrong, et al., No. 2:21-cv-00779-KJM-KJIN

12 Plaintiffs, ORDER

13 v.

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County of Placer, et al.,

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> Defendants.

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17 Plaintiffs Tylor Armstrong and Kimberly Armstrong move for a temporary restraining

18 | order barring defendants AT&T Mobility (AT&T) and any persons acting in concert with it from

19 | beginning construction of a cellphone tower close to their second home in Lake Tahoe. See

20 | generally Mot. TRO, ECF No. 4; Mem. P&A (Mem.), ECF No. 4-1; Compl., ECF No. 1.

21 | Construction is scheduled to commence May 3, 2021.! Mem. at 1. The motion is denied.

' Plaintiffs filed this motion for a temporary restraining order and preliminary injunction

on April 30, 2021 at 2:57 p.m. See generally Mot. TRO. Just over an hour later, this court issued

a minute order directing plaintiffs to inform defendants AT&T, Martis Camp Club, and Martis

Camp Community that if they wished to file an opposition to the TRO they must do so by May 1,

2021 at 5:00 p.m. Minute Order, ECF No. 7. Plaintiffs’ counsel promptly called the court to

confirm the May 1 deadline was on the Saturday and the courtroom deputy confirmed it was.

Plaintiffs have not filed any notice confirming that they complied with the court’s directive.

Martis Camp Club and Martis Camp Community represent they received no communication from

plaintiffs regarding their filing deadline, Opp’n at 2 n.1, although these defendants obviously

learned of plaintiffs’ motion somehow. Plaintiffs are ordered to file a notice of their efforts to

1 I. BACKGROUND

2 In 2011, plaintiffs purchased vacant land in Martis Camp, a private “luxury community”

3 in the Lake Tahoe area. Mem. at 2, 7; Compl. ¶ 17. Martis Camp is managed by defendants

4 Martis Camp Club and Martis Camp Community Association, “non-profit” corporations that

5 manage parcels of real property and facilities for its members. TRO Opp’n at 2 (Opp’n), ECF

6 No. 8. The Armstrongs chose to build their second home in Martis Camp because it offers

7 “premier amenities and incredibly breathtaking views.” Aff. Tylor Armstrong ¶ 1 (Armstrong

8 Aff.), Mot. TRO, ECF No. 4-2.

9 The Armstrongs built the Residence, an approximately $10.75 million dollar property

10 with “unobstructed” and “stunning views of the nearby golf course and Northstar’s Lookout

11 Mountain.” Id. ¶ 3; Mem. at 2. On average, the Armstrongs spend ten weeks a year in this

12 second home. Armstrong Aff. ¶ 3.

13 In 2015, while they both were on the golf course, Martis Camp Club’s Chief Operating

14 Officer, Mark Johnson, spoke with Tylor Armstrong and shared that Martis Camp was

15 considering contracting with Verizon for construction of a cell tower near the Residence.

16 Armstrong Aff. ¶ 4. At the time, details of the plan were sparse. See id. In October 2016,

17 Mr. Armstrong reached out about the cell tower construction project and was told he would be

18 kept informed of future developments. Id. ¶ 5.

19 At some point, Martis Camp ceased working with Verizon and began discussions with a

20 new service provider, AT&T. See Armstrong Aff. ¶¶ 6, 15; Opp’n at 3. Martis Camp ultimately

21 gave permission to AT&T to build a 110 foot “5G” cellphone tower at 7951 Fleur Du Lac Drive,

22 Truckee, California 96161, within “a few hundred feet” from the Residence. Armstrong Aff. ¶ 6;

23 see also Mem. 1-2 (referencing “the contract for the construction of the tower between AT&T and

24 defendant the Martis Camp community”). The new cell tower, once constructed, will be visible

25 from every window of the Residence except the master bedroom and will “entirely destroy the

26 overwhelmingly pristine, charming and breathtaking views from [the Armstrongs’] property.”

comply with the court’s directive to notify certain defendants of the May 1 deadline and if they

did not provide notice as directed their reasons for not doing so.

1 Armstrong Aff. ¶ 6. Plaintiffs, through Mr. Armstrong, aver they were never informed of the new

2 plans to proceed with AT&T by either the Martis Camp leadership or defendant Placer County.

3 Id. ¶¶ 9, 22–25.

4 The Armstrongs recently decided they wanted to have a home closer to their children and

5 decided to sell their Martis Camp home. Id. ¶ 32; see Mem. at 2. In March 2021, the Armstrongs

6 entered into a contract for the sale of the Residence for $10.75 million. Armstrong Aff. ¶ 10.

7 The prospective buyer put down a deposit of $322,500 dollars and agreed to a rapid closing

8 schedule: 14 days for contingency inspections and 17 days for closing. Compl. ¶ 72. The

9 Armstrongs did not disclose the prospect of a cell tower being constructed nearby. Id. ¶ 74.

10 On March 29, 2021, the Armstrongs’ real estate agent learned of the plan for a cell tower.

11 Id. ¶ 75. She informed the Armstrongs they needed to disclose the existence of the construction

12 plans to the buyer. Armstrong Aff. ¶ 14. The Armstrongs still chose not to inform the buyer as

13 they “did not know if AT&T had a valid contract with Martis Camp or secured its necessary

14 permits. . . . [nor] how . . . the project would [] impact[] the Residence.” Id. ¶ 15.

15 Ultimately, after pressure from their real estate agent, plaintiffs agreed to allow Martis

16 Camp to disclose some of the cell tower details to the buyer. Compl. ¶ 79. The buyer requested a

17 few additional days to explore the implications of the cell tower construction site in close

18 proximity to the home; the Armstrongs did not grant the request for more time. Armstrong Aff.

19 ¶¶ 18–19. On April 1, 2021, the buyer withdrew his offer and cancelled his contract with the

20 Armstrongs. Id. ¶ 20. Plaintiffs now believe the cell tower will cause “significant adverse

21 aesthetic impacts to our property,” id. ¶ 9, and potentially reduce the property value by

22 approximately 2 million dollars, Compl. ¶ 65.

23 Defendants Martis Camp Club and Martis Camp Community Association have opposed

24 the request for a temporary restraining order and paint a different picture than that suggested by

25 plaintiffs. In their opposition, the Martis Camp defendants state that plans for the cell tower were

26 discussed in June 2019 at one of Martis Camp’s regularly scheduled Board meetings. Opp’n at 3;

27 see also June 15, 2019 Martis Camp Club Board of Directors Meeting at 4, Ex. B, Opp’n, ECF

28 No. 8-1. Defendants aver that public notices “were mailed by the County to property owners of

1 record within 300 feet of the site proposed for the cell tower.” Decl. of Chief Operating Officer

2 of Martis Camp Club Mark Johnson (Johnson Decl.) ¶ 12, ECF No. 8-1. Plaintiffs’ complaint

3 alleges the cell tower will be “roughly a few hundred feet” from the Residence. Compl. ¶ 23;

4 Armstrong Aff. ¶ 12 (noting “prospect of a 5G cell tower in very close proximity to the

5 Residence”). Defendants also say Mr. Armstrong sent an email to Martis Camp executive staff

6 and Board Members on April 7, 2021, slightly less than a month ago, that he would file suit

7 before May 3, 2021. Johnson Decl. ¶¶ 13–14.

8 On April 30, 2021, three days prior to the start date for construction of the cell tower, on a

9 Friday afternoon, plaintiffs filed their complaint, making eleven claims. See generally Compl.

10 The first four claims are brought against Placer County and allege the County deprived plaintiffs

11 of their property without due process and deprived them of their First Amendment rights to

12 protest the cell tower’s approval. Compl. ¶¶ 88–112. Plaintiffs bring six claims against Martis

13 Camp Community Association and Martis Camp Club alleging breach of contract, breach of

14 fiduciary duty, breach of implied covenant of good faith and fair dealing, negligence, intentional

15 interference with prospective economic advantage, intentional interference with a contractual

16 relationship, and negligent interference with prospective economic advantage. Id. ¶¶ 113–164.

17 Plaintiffs’ motion for a temporary restraining order and preliminary injunction seeks to enjoin

18 AT&T and others acting in concert with it from commencing construction of the cell tower on

19 May 3, 2021.

20 II. LEGAL STANDARD

21 A temporary restraining order or “TRO” may be issued only upon a showing “that

22 immediate and irreparable injury, loss, or damage will result to the movant before the adverse

23 party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is

24 to preserve the status quo and to prevent irreparable harm “just so long as is necessary to hold a

25 hearing, and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423,

26 439 (1974). A TRO is an extraordinary remedy, and a plaintiff who requests a TRO must prove

27 that remedy is proper by a clear showing. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).

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1 In determining whether to issue a temporary restraining order, a court applies the factors

2 that guide the evaluation of a request for preliminary injunctive relief: whether the moving party

3 “is likely to succeed on the merits, . . . likely to suffer irreparable harm in the absence of

4 preliminary relief, . . . the balance of equities tips in [its] favor, and . . . an injunction is in the

5 public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Stuhlbarg

6 Int’l. Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the

7 analysis for temporary restraining orders and preliminary injunctions is “substantially identical”).

8 Alternatively, courts may analyze a TRO request using a sliding scale approach through

9 which the elements of the “test are balanced, so that a stronger showing of one element may

10 offset a weaker showing of another.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131

11 (9th Cir. 2011). This test requires plaintiffs to demonstrate the requisite likelihood of irreparable

12 harm, show that an injunction is in the public interest, raise “serious questions” going to the

13 merits, and show a balance of hardships that “tips sharply” in plaintiffs’ favor. Id. at 1131–36

14 (concluding that the “serious questions” version of the sliding scale test for preliminary

15 injunctions remains viable after Winter).

16 III. ANALYSIS

17 A. Irreparable Injury

18 “Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in

19 order to obtain a preliminary injunction.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127,

20 1131 (9th Cir. 2011) (emphasis in original). “The key word in this consideration is irreparable.

21 Mere injuries, however substantial, in terms of money, time and energy necessarily expended in

22 the absence of a stay, are not enough.” Mclean v. Aurora Loan Servicing, No. 11-0455, 2011 WL

23 4635027, at *1 (S.D. Cal. Oct. 5, 2011) (emphasis in original, quoting Sampson v. Murray,

24 415 U.S. 61, 90 (1974)). “Economic injury alone does not support a finding of irreparable harm,

25 because such injury can be remedied by a damage award.” Rent-A-Ctr., Inc. v. Canyon Television

26 & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991). “Monetary injury is not normally

27 considered irreparable.” L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197,

28 1202 (9th Cir. 1980).

1 1. AT&T and Martis Camp Defendants

2 Plaintiffs have not shown why the injury they allege they will suffer is not addressable by

3 monetary damages. While in one portion of their motion plaintiffs argue that “no award of

4 damages can compensate Plaintiffs for the destruction of their pristine” view, Mem. at 8, the

5 complaint identifies an approximate $2 million dollar reduction in the value of their property if

6 the cell tower construction proceeds. Compl. ¶ 65. The complaint itself invokes nonmonetary

7 values, alleging the “tower will destroy the unique property view . . . and Plaintiffs’ peaceful and

8 beneficial possession of their property.” Id. ¶ 2. But plaintiffs themselves had not planned to

9 continue using the Residence, which they “enjoy” and typically visit for ten weeks per year,

10 Armstrong Aff. ¶ 3, once the sale they thought would close by March 30, 2021 was effected. Id.

11 ¶ 20. It is only because the planned sale went awry that plaintiffs must now remain in the house

12 until June 2022, while their “primary residence in Victoria (Canada) is scheduled for a major

13 renovation starting July 1st.” See id. ¶ 32. While plaintiffs complain that their own “beautiful,

14 unobstructed view of the golf course and mountains in the background,” will be destroyed, id., at

15 least until they depart in slightly over a year, they do not provide authority supporting a grant of

16 temporary injunctive relief to prevent this kind of short-term injury. In their discussion of public

17 interest factors, they do not identify protection of a uniquely pristine viewshed as a broader public

18 consideration. Mem. at 10. Given their plans to relocate, plaintiffs do not explain how

19 recovering any reduction in their property value from AT&T or the Martis Camp defendants, who

20 have contracted for the impending cell tower installation, is not a sufficient legal remedy. “The

21 possibility that adequate compensatory or other corrective relief will be available at a later date,

22 in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.”

23 Qualcomm Inc. v. Compal Elecs., Inc., 283 F. Supp. 3d 905, 914–15 (S.D. Cal. 2017) (quoting

24 Sampson v. Murray, 415 U.S. 61, 90 (1974)) (addressing irreparable harm in context of stay).

25 Even if plaintiffs identified a type of harm that could justify immediate injunctive relief, it

26 appears some time remains before the cell tower itself is erected. Opp’n at 7-8; Johnson Decl.

27 ¶ 15. In that time the court could hear a properly noticed and briefed motion for preliminary

28 injunction.

1 2. Placer County

2 Plaintiffs also say they will experience irreparable injury if a temporary restraining order

3 does not issue, given the deprivation of their constitutional rights by Placer County. Specifically,

4 plaintiffs argue construction of the cell tower will permanently deprive them of their First

5 Amendment right to petition the government. Mem. at 6; Armstrong Aff. ¶¶ 28–29. Plaintiffs

6 represent that Placer County’s administrative review process, which has been completed, did not

7 afford them notice or an opportunity to oppose the cell tower construction. Mem. at 6. Plaintiffs

8 cite no legal authority to support their position given the factual allegations of this case.

9 Constitutional violations may be the basis of irreparable injury, but the cases plaintiffs cite

10 involve parties seeking injunctive relief before the threatened constitutional violation has

11 occurred. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (at time injunctive relief was

12 sought, public employees were being threatened with discharge for their political beliefs). “It is

13 not enough that the claimed harm be irreparable; it must be imminent as well.” Vico v. U.S. Bank,

14 No. 1208440, 2012 WL 12888826, at *6 (C.D. Cal. Oct. 29, 2012); Caribbean Marine Servs. Co.,

15 Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“[A] plaintiff must demonstrate immediate

16 threatened injury as a prerequisite to preliminary injunctive relief.” (emphasis in original)). In

17 this case, plaintiffs’ alleged constitutional violations based on the First Amendment are not

18 imminent or prospective. If the County did commit constitutional violations, those violations

19 occurred in the past. Compl. ¶¶ 49–65 (describing County’s administrative review permit

20 process, which “does not require an applicant to provide notice and present its application at a

21 public hearing” if upon initial review of an application the cell tower antennae is not “visually

22 obtrusive”); id. ¶ 70 (because persons in plaintiffs’ shoes “are not notified and are unaware of

23 pending cell tower projects, they cannot file a timely appeal with the County”). Plaintiffs cite no

24 legal authority or probative evidence to support any argument that construction of the cell tower

25 will deprive them of an ongoing constitutional right. See Am. Passage Media Corp. v. Cass

26 Commc’ns, Inc., 750 F.2d 1470, 1473 (9th Cir. 1985) (reversing entry of preliminary injunction

27 because movant’s evidence was insufficient to demonstrate irreparable harm).

1 3. Conclusion

2 The Armstrongs have not satisfied their burden of showing they are “likely to suffer

3 irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. The court

4 therefore need not review the additional factors relevant to determining whether a temporary

5 restraining order should issue. See Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir.

6 2011).

7 B. Delay

8 Plaintiffs’ delay also counsels against granting the temporary restraining order they

9 request. This district’s Local Rules impose specific requirements on any party that requests

10 temporary injunctive relief. See L.R. 231. In evaluating the merits of a temporary restraining

11 order, the applicable rule provides as follows:

12 In considering a motion for a temporary restraining order, the Court

13 will consider whether the applicant could have sought relief by

14 motion for preliminary injunction at an earlier date without the

15 necessity for seeking last-minute relief by motion for temporary

16 restraining order. Should the Court find that the applicant unduly

17 delayed in seeking injunctive relief, the Court may conclude that

18 the delay constitutes laches or contradicts the applicant’s

19 allegations of irreparable injury and may deny the motion solely on

20 either ground.

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22 L.R. 231(b). Here, plaintiffs were aware of the impending construction of the cell tower since at

23 least as early as late March 2021. On April 7, 2021, plaintiffs emailed the Martis Camp Club

24 Executive staff and informed them they planned to litigate the issue before May 3. Johnson Decl.

25 ¶ 13. Plaintiffs then waited more than three weeks to file suit, moving for a temporary restraining

26 order on the Friday afternoon before the Monday morning when they say construction is due to

27 begin. This delay supports denial of the motion for a temporary restraining order. Mammoth

28 Specialty Lodging, LLC v. We-Ka-Jassa Inv. Fund, LLC, No. 10-0864, 2010 WL 1539811, at *2

29 (E.D. Cal. Apr. 16, 2010) (two-week delay in filing temporary restraining order and doing so

30 three days before foreclosure sale sufficient to deny motion). The delay also undercuts plaintiffs’

31 arguments that they will suffer irreparable harm. See Oakland Trib., Inc. v. Chron. Pub. Co.,

1 | 762 F.2d 1374, 1377 (9th Cir. 1985); see also Cocina Cultura LLC v. Oregon, No. 20-02022,

2 | 2020 WL 7181584, at *4 (D. Or. Dec. 7, 2020) (plaintiff’s three-month delay in seeking

3 | injunctive relief signaled “a lack of urgency and irreparable harm’’).

4] IV. CONCLUSION

5 The court denies plaintiffs’ motion for a temporary restraining order. The Armstrongs

6 | may calendar their motion for a preliminary injunction motion on the court’s regular calendar to

7 | allow for full briefing by all affected parties.

8 This order resolves ECF No. 4.

9 IT IS SO ORDERED.

10 | DATED: May 3, 2021. [ (]

l pais f os

CHIEF ONT] ED STATES DISTRICT JUDGE

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