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(City & County of San Francisco Super. Ct. No. CPF-11-511369)
Before us is what this court has deemed a petition for a writ of mandate filed by NextG Networks of California (NextG), a telecommunications service provider, to compel the superior court to stay an order compelling NextG to remove a telecommunications transmission facility pending determination of a petition for a writ of mandate challenging the revocation of the permit pursuant to which the facility was constructed. We shall grant the writ of mandate to direct that the order be stayed pending resolution of the underlying challenge to the permit revocation.
FACTUAL AND PROCEDURAL HISTORY
On September 8, 2010, the San Francisco Department of Public Works (the department) granted NextG a permit to construct a wireless service facility on an existing utility pole in the public right-of-way adjacent to 156 27th Avenue in San Francisco, and related power equipment on another existing utility pole on the other side of the street. Construction of the facility began in early December and was completed on December 28. The site began carrying telecommunications traffic on December 31, 2010.
More than three months after the permit had been issued, on December 22, two residents who had not received prior notice of the permit application requested the San Francisco Board of Appeals (the board) to allow a late-filed appeal contesting issuance of the permit. On January 12, 2011, the board allowed the late appeal and on April 20, 2011 the board revoked NextG's permit. The board's April 20 order explains that the City and County of San Francisco (the city) "erroneously failed to refer the permit application to the planning department as the then-existing law required" because the city's map showing the locations that required planning department approval mistakenly omitted the relevant area. The board concluded that consequently the permit had been issued in error and therefore that NextG had not acquired a vested right in the permit. The board also explained that a new local administrative code provision governing the issuance of permits had taken effect on February 13, 2011, and that because the permit had not been properly approved under either the prior provision or the new procedure, the board could not then grant the permit. The board granted the appeal and revoked the permit previously issued, stating, however, that because of the change in the applicable law, NextG would not be barred from reapplying for a permit under the new provisions.
Following the board's denial of NextG's petition for rehearing, on May 25, 2011, the department advised NextG by letter that it must remove the newly installed equipment by June 20, 2011, and that the department "may be required to take additional action should this facility not be removed" by that date. On June 7, 2011, NextG updated its permit application and requested an extension of time to remove the equipment, so that its renewed permit application could be processed before it was required to dismantle the equipment. The department informed NextG that it would not extend the deadline for removal and repeated that if NextG did not remove its equipment the city would take any additional actions it deemed necessary to effect the removal. It offered to meet with NextG to review re-application procedures, but emphasized "this facility will be removed by June 20." On June 16, NextG stated it would remove the wireless equipment by the deadline, but noted that the power equipment across the street from the wireless equipment needed to remain in place for safety reasons. The next day the city replied that the entire facility, including "all related equipment" was to be removed by June 20. It reiterated its warning that it would take "any additional actions deemed necessary."
Without having removed its equipment, on June 21, 2011, NextG filed in the superior court a verified petition for writ of mandate or administrative mandate and an ex parte application for an alternative writ and for an immediate stay. The same day NextG brought an ex parte application for an immediate stay of the department's directive, which the superior court denied. On June 24, NextG filed a notice of appeal challenging the denial of the stay and, three days later, filed a petition for writ of supersedeas. On June 28, this court denied that petition for lack of sufficient supporting documentation.
On June 30, NextG refiled in this court its supersedeas petition, supported by a declaration summarizing the lower court proceedings. The declaration explained that in considering the application for a stay the superior court judge had communicated with counsel through a staff attorney and that there was no transcript of the proceedings or any explanation provided of the basis for the denial. On July 1, this court temporarily stayed the department's directive to NextG to remove its equipment and requested opposition. The city opposed the supersedeas petition and also filed a motion to dismiss the appeal on the ground that the order denying the application for a stay is not an appealable order.
On August 22, 2011, this court issued an order which construed NextG's notice of appeal and supersedeas petition as a petition for an extraordinary writ of mandate to direct the trial court to stay the directive to remove the equipment pending the outcome of the superior court writ proceedings. Our order also set a briefing schedule and notified the parties, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 that, if appropriate, the court may issue a peremptory writ of mandate in the first instance. After reviewing the briefing submitted by the parties, we now direct that a peremptory writ of mandate be issued.
Because we have construed the notice of appeal as a petition for a writ of mandate, issuance of the writ disposes of this proceeding. The pending request to expedite the appeal is therefore denied as moot.
The city argues that it was error for this court to construe NextG's notice of appeal and supersedeas petition as a petition for a writ of mandate because the trial court is not a party to this proceeding and because there are no unusual circumstances warranting this action. We disagree.
The city contends that since a writ would be directed to the trial court, the superior court is a necessary, but absent, party. (See People ex rel. Dept. of Public Works v. Rodoni (1966) 243 Cal.App.2d 771, 775.) However, the trial court has no more than a nominal interest in this case and need not appear in the writ proceedings in this court. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746.) Both our July 1 and August 22, 2011 orders were served on the superior court, and the court has responded to neither.
We do agree with the city that we should only sparingly exercise our discretion to construe a notice of appeal and accompanying supersedeas petition as a mandate petition. (Black Diamond Asphalt, Inc. v. Superior Court (2003) 114 Cal.App.4th 109, 114.) We conclude, however, that the unusual circumstances in this case are sufficient to warrant such action. It is undisputed that the wireless service facility in question was installed pursuant to a permit issued by the department, and that the error in issuing the permit was the fault of the city. Although NextG completed installation of the equipment a few days after being notified that the board was allowing a late challenge to the permit, installation was by then well under way, and there is no evidence of the feasibility of having discontinued the installation process at that point. Furthermore, neither the board's order nor the department's notice directed NextG to terminate installation.
As the city contends in its motion to dismiss, the superior court's denial of the stay request is not an appealable order. Therefore, an extraordinary writ is the only means by which effective relief can be provided. (See Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1274.)
An order staying the department's directive in effect will be the functional equivalent of a preliminary injunction. In deciding whether to grant a preliminary injunction, consideration must be given to two interrelated questions: (1) the relative harm the parties would suffer in the event that the injunction is granted or denied and (2) the plaintiff's reasonable probability of success on the merits. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.)
Although the moving papers before the superior court did not quantify the expense that would be incurred and the revenue that would be lost by dismantling the equipment and later reinstalling it should NextG prevail on its petition to set aside the permit revocation, or should the department reissue the permit, there is no doubt that NextG would incur needless expense and a loss of revenue in either event. Moreover, customers served by the wireless service facility would experience a loss of service and, as alleged in the verified superior court petition, "removal of the site would create a gap in which fire, police, and other first responders would encounter a dead zone and an inability to respond to emergencies or 911 calls." The city suggests no countervailing harm that will be experienced by deferring the removal of the equipment until NextG's right to maintain it has been determined.
NextG does provide some quantification in the papers that it has filed in this court, to which the city properly objects because this material was not submitted to the trial court. We sustain the objection and restrict our consideration to the evidence that was before the trial court.
We judicially notice that on August 22, 2011, the department issued a "Notice of Tentative Approval of Application," tentatively and conditionally approving NextG's renewed application for a permit to install its equipment. (Evid. Code, §§ 452, subd. (c); 459, subd. (a); Trinity Park L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1027 [approving judicial notice of official acts taken by a city].)
Moreover, when NextG agreed to remove the wireless equipment, but indicated that for safety reasons the power equipment located across the street from the distribution pole would be left intact, the department simply reiterated its demand that NextG remove all of the equipment. Neither the department's response nor any showing made in the superior court or in this court addresses NextG's safety concerns.
As to the likelihood of success on the pending superior court petition, we are not presently in a position to evaluate the respective arguments of the parties, and express no views as to the proper outcome of the trial court proceedings. However, in view of the fact that the failure to obtain planning department approval resulted from two errors on the part of the city, and that without knowledge of the errors NextG relied on the permit, NextG's position may well have merit. Given the uncertainty created by the city's actions, and the lopsided balance of potential harm, it is appropriate to maintain the status quo until the relevant legal issues have been decided. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528 [maintaining the status quo is proper purpose for granting a preliminary injunction]; Butt v. State of California (1992) 4 Cal.4th 668, 677-678 [the greater the showing on one relevant factor, the less that must be shown on the other to support an injunction].)
This court may employ the accelerated Palma procedure "when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue." (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241.) Here (1) the unavailability of relief to petitioner, absent writ relief, (2) the lack of any harm to the city if the stay is granted pending determination of the writ petition below, and (3) the damage to emergency communications and monetary damages that would be suffered by NextG if the city's directive to remove its equipment were not stayed all support issuance of the writ.
Consequently, let a peremptory writ of mandate issue commanding respondent superior court to vacate its order denying NextG's application to stay the department's directive that it remove its equipment at 156 27th Avenue, San Francisco, California, and to issue a new order granting the stay pending final resolution of the superior court writ proceedings. Allowable costs are awarded to NextG. This decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(3).)
Pollak, J. We concur: McGuiness, P. J. Jenkins, J.