NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RICHARD WOLF, No. 21-16649
Plaintiff-Appellant, D.C. No. 4:21-cv-00967-PJH
v. MEMORANDUM* CITY OF MILLBRAE, a government entity; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding
Submitted February 16, 2023** San Francisco, California
Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.
Richard Wolf appeals from the district court’s dismissal of various claims
Wolf brought against the City of Millbrae (“the City”), the Millbrae Heights
Homeowners Association (“HOA”) and individual members of its board, and T-
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Mobile USA, Inc. (“T-Mobile”), for failure to state a claim. As the parties are
familiar with the facts of this case, we do not recite them here. We review de novo
and may affirm on any basis supported by the record. ASARCO, LLC v. Union
Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).
1. The district court properly dismissed Wolf’s claims against the City of
Millbrae for failing to provide a reasonable accommodation in violation of the
Americans with Disabilities Act (“ADA”).1 Title II of the ADA prohibits
disability-based “discrimination in the provision of public services.” Barden v.
City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002). Wolf’s complaint does
not plausibly allege that the City’s permit application approval process for wireless
communications facilities is a City “output that [Wolf] participates in or receives.”
Zimmerman v. Or. Dep’t of Just., 170 F.3d 1169, 1176 (9th Cir. 1999); cf. Hason v.
Med. Bd., 279 F.3d 1167, 1172–73 (9th Cir. 2002) (by contrast, medical licensing
constituted a public service to applicant for medical license). Because Wolf has
not alleged that he was denied a reasonable accommodation that would allow him
equal access to a public “service[], program[], or activit[y],” 42 U.S.C. § 12132,
Wolf’s Title II claim against the City was properly dismissed. See Zimmerman,
1 Wolf does not raise any argument challenging the district court’s dismissal of Wolf’s ADA Title III claims against the HOA because “public accommodation” does not include residential housing complexes. Wolf has thus waived his ADA claim against the HOA on appeal. See E.E.O.C. v. Peabody W. Coal Co., 773 F.3d 977, 990 (9th Cir. 2014).
2 170 F.3d at 1175–76.
Moreover, because the only connection alleged between the City and the cell
site is the permit approval process, and Wolf concedes that the radiofrequency
(“RF”) emissions from the cell site are within Federal Communications
Commission (“FCC”) limits, Wolf seeks accommodations that are inconsistent
with the Telecommunications Act of 1996 (“TCA”). See 47 U.S.C.
§ 332(c)(7)(B)(iv) (“No state or local government or instrumentality thereof may
regulate the placement, construction, and modification of personal wireless service
facilities on the basis of the environmental effects of radio frequency emissions to
the extent that such facilties comply with the Commission’s regulations concerning
such emissions.”). Where such direct conflict exists, we do not require the City to
make the “Hobson’s choice” of whether to violate the ADA or the TCA. See
Willis v. Pac. Maritime Ass’n, 244 F.3d 675, 681–82 (9th Cir. 2001).
2. The district court properly dismissed Wolf’s claims against the HOA, the
City of Millbrae, and T-Mobile for failing to provide a reasonable accommodation
in violation of the federal Fair Housing Act and California’s Fair Employment and
Equal Housing Act. We affirm the district court’s conclusion that Wolf failed to
plead a fair housing violation because he failed to allege that the requested
accommodation “may be necessary to afford [Wolf] equal opportunity to use and
enjoy [his] dwelling.” 42 U.S.C. § 3604(f)(3)(B); see United States v. Cal. Mobile
3 Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997). Although the district
court granted Wolf leave to amend these claims, Wolf chose not to do so and
appealed instead.
3. The district court properly dismissed Wolf’s claims against the City of
Millbrae and T-Mobile for violations of his fundamental rights to self-defense,
personal security, and bodily integrity, brought pursuant to 42 U.S.C. § 1983.
Wolf asserts that defendants’ application of § 332(c)(7)(B)(iv) of the TCA to his
detriment constitutes a substantive due process violation. It does not. See County
of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (“[T]he substantive component
of the Due Process Clause is violated by executive action only when it ‘can
properly be characterized as arbitrary, or conscience shocking, in a constitutional
sense.’” (quoting Collins v. Harker Heights, 503 U.S. 115, 128 (1992))).
4. Wolf’s private nuisance claims against T-Mobile, the HOA, and the
individual defendants were properly dismissed because federal law preempted
those claims. See Cohen v. Apple Inc., 46 F.4th 1012, 1027 (9th Cir. 2022)
(“[F]ederal law preempts state law . . . where ‘the state law “stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of
Congress.”’” (quoting Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1179 (9th Cir.
2016))). Congress passed the TCA “[t]o promote competition and reduce
regulation in order to secure lower prices and higher quality services for American
4 telecommunications consumers and encourage the rapid deployment of new
telecommunications technologies.” Telecommunications Act of 1996, Preamble,
Pub. L. No. 104–404, 110 Stat. 56 (1996). Permitting nuisance suits based on RF
emissions within FCC limits would interfere with these goals. See 47 U.S.C.
§ 332(c)(7)(B)(iv) (preventing local governments from regulating the siting and
construction of cell sites based on effects of RF emissions where those emission
levels are within FCC limits); Cohen, 46 F.4th at 1031 (finding that FCC
regulations setting RF radiation limits “preempt state laws that impose liability
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RICHARD WOLF, No. 21-16649
Plaintiff-Appellant, D.C. No. 4:21-cv-00967-PJH
v. MEMORANDUM* CITY OF MILLBRAE, a government entity; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding
Submitted February 16, 2023** San Francisco, California
Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.
Richard Wolf appeals from the district court’s dismissal of various claims
Wolf brought against the City of Millbrae (“the City”), the Millbrae Heights
Homeowners Association (“HOA”) and individual members of its board, and T-
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Mobile USA, Inc. (“T-Mobile”), for failure to state a claim. As the parties are
familiar with the facts of this case, we do not recite them here. We review de novo
and may affirm on any basis supported by the record. ASARCO, LLC v. Union
Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).
1. The district court properly dismissed Wolf’s claims against the City of
Millbrae for failing to provide a reasonable accommodation in violation of the
Americans with Disabilities Act (“ADA”).1 Title II of the ADA prohibits
disability-based “discrimination in the provision of public services.” Barden v.
City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002). Wolf’s complaint does
not plausibly allege that the City’s permit application approval process for wireless
communications facilities is a City “output that [Wolf] participates in or receives.”
Zimmerman v. Or. Dep’t of Just., 170 F.3d 1169, 1176 (9th Cir. 1999); cf. Hason v.
Med. Bd., 279 F.3d 1167, 1172–73 (9th Cir. 2002) (by contrast, medical licensing
constituted a public service to applicant for medical license). Because Wolf has
not alleged that he was denied a reasonable accommodation that would allow him
equal access to a public “service[], program[], or activit[y],” 42 U.S.C. § 12132,
Wolf’s Title II claim against the City was properly dismissed. See Zimmerman,
1 Wolf does not raise any argument challenging the district court’s dismissal of Wolf’s ADA Title III claims against the HOA because “public accommodation” does not include residential housing complexes. Wolf has thus waived his ADA claim against the HOA on appeal. See E.E.O.C. v. Peabody W. Coal Co., 773 F.3d 977, 990 (9th Cir. 2014).
2 170 F.3d at 1175–76.
Moreover, because the only connection alleged between the City and the cell
site is the permit approval process, and Wolf concedes that the radiofrequency
(“RF”) emissions from the cell site are within Federal Communications
Commission (“FCC”) limits, Wolf seeks accommodations that are inconsistent
with the Telecommunications Act of 1996 (“TCA”). See 47 U.S.C.
§ 332(c)(7)(B)(iv) (“No state or local government or instrumentality thereof may
regulate the placement, construction, and modification of personal wireless service
facilities on the basis of the environmental effects of radio frequency emissions to
the extent that such facilties comply with the Commission’s regulations concerning
such emissions.”). Where such direct conflict exists, we do not require the City to
make the “Hobson’s choice” of whether to violate the ADA or the TCA. See
Willis v. Pac. Maritime Ass’n, 244 F.3d 675, 681–82 (9th Cir. 2001).
2. The district court properly dismissed Wolf’s claims against the HOA, the
City of Millbrae, and T-Mobile for failing to provide a reasonable accommodation
in violation of the federal Fair Housing Act and California’s Fair Employment and
Equal Housing Act. We affirm the district court’s conclusion that Wolf failed to
plead a fair housing violation because he failed to allege that the requested
accommodation “may be necessary to afford [Wolf] equal opportunity to use and
enjoy [his] dwelling.” 42 U.S.C. § 3604(f)(3)(B); see United States v. Cal. Mobile
3 Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997). Although the district
court granted Wolf leave to amend these claims, Wolf chose not to do so and
appealed instead.
3. The district court properly dismissed Wolf’s claims against the City of
Millbrae and T-Mobile for violations of his fundamental rights to self-defense,
personal security, and bodily integrity, brought pursuant to 42 U.S.C. § 1983.
Wolf asserts that defendants’ application of § 332(c)(7)(B)(iv) of the TCA to his
detriment constitutes a substantive due process violation. It does not. See County
of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (“[T]he substantive component
of the Due Process Clause is violated by executive action only when it ‘can
properly be characterized as arbitrary, or conscience shocking, in a constitutional
sense.’” (quoting Collins v. Harker Heights, 503 U.S. 115, 128 (1992))).
4. Wolf’s private nuisance claims against T-Mobile, the HOA, and the
individual defendants were properly dismissed because federal law preempted
those claims. See Cohen v. Apple Inc., 46 F.4th 1012, 1027 (9th Cir. 2022)
(“[F]ederal law preempts state law . . . where ‘the state law “stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of
Congress.”’” (quoting Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1179 (9th Cir.
2016))). Congress passed the TCA “[t]o promote competition and reduce
regulation in order to secure lower prices and higher quality services for American
4 telecommunications consumers and encourage the rapid deployment of new
telecommunications technologies.” Telecommunications Act of 1996, Preamble,
Pub. L. No. 104–404, 110 Stat. 56 (1996). Permitting nuisance suits based on RF
emissions within FCC limits would interfere with these goals. See 47 U.S.C.
§ 332(c)(7)(B)(iv) (preventing local governments from regulating the siting and
construction of cell sites based on effects of RF emissions where those emission
levels are within FCC limits); Cohen, 46 F.4th at 1031 (finding that FCC
regulations setting RF radiation limits “preempt state laws that impose liability
premised on levels of radiation below the limits set by the FCC”).
5. The district court properly dismissed Wolf’s breach of fiduciary duty
claims against the HOA and its board members. Wolf alleges that the HOA and its
board members breached their fiduciary duties to Wolf by concealing the precise
location of T-Mobile’s cell site, but that claim accrued when Wolf “discovered, or
in the exercise of reasonable diligence could have discovered, that facts had been
concealed.” Stalberg v. W. Title Ins. Co., 230 Cal. App. 3d 1223, 1230 (1991).
Wolf’s claim thus accrued when he learned the location of the cell site when it was
installed in 2010 and is time-barred. To the extent Wolf now argues that the HOA
and its members breached a fiduciary duty to him by renewing the lease with T-
Mobile in 2020, his complaint does not fairly raise a claim based on the lease
renewal. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (pleading must
5 “give the defendant fair notice of what the . . . claim is and the grounds upon which
it rests” (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957))).2
AFFIRMED.
2 The California League of Cities’ motion to become amicus curiae (Doc. 48) and the City of Millbrae’s request to take judicial notice (Doc. 38) are GRANTED.