CC SR 20230117 G - Indian Peak
CITY COUNCIL MEETING DATE: 01/17/2023
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA TITLE:
Consideration and possible action to receive a litigation status report on the City’s code
enforcement actions involving Indian Peak Properties, LLC.
RECOMMENDED COUNCIL ACTION:
(1) Receive and file a litigation status report on Indian Peak Properties, LLC.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: William Wynder, City Attorney
REVIEWED BY: Same as above
APPROVED BY: Ara Mihranian, AICP, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Judgement After Appeal (Page A-1)
B. Before and After Photographs (Page B-1)
BACKGROUND AND DISCUSSION:
The saga that is Indian Peak commenced on August 5, 2014, in response to resident
complaints regarding the antenna farm existing on the roof of a single-family residence,
located at 26708 Indian Peak Road, and owned by Indian Peak Properties, LLC (one Mr.
James Kay). City Staff conducted an inspection of the Property and determined Indian Peak
had installed numerous roof-mounted commercial antennas, beyond those originally
permitted under its after-the-fact conditional use permit (meaning that Indian Peak converted
this home into its commercial antenna farm without any City permits in the first instance).
There then followed a series of lawsuits, two in state court, followed by two Court of Appeals
decisions, a foray into Federal District Court (which was abandoned by Indian Peak in the
face of an adverse preliminary ruling), and an effort to attract the attention of the Federal
Communications Commission (FCC). At every turn, the Courts and the FCC have
rejected Indian Peak’s efforts to delay, delay, delay and avoid removal of the illegal
antennas.
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In its brief foray into Federal Court, Indian Peak argued that its antennas were “Over-The-
Air,” ordinance-exempt, federally-protected antennas. Indian Peak further argued the City
was seeking to enforce zoning restrictions which required Indian Peak to remove the
antennas in violation of the federal statutory law.
After the filing of its federal court action, Indian Peak then brought two applications for a
temporary restraining order preventing the City from removing any of the illegal antennas
from its property. Both were denied. Indian Peak then filed a motion for a preliminary
injunction, which was denied. Most damning, the federal district judge found that “Indian
Peak is clearly – and fairly openly – attempting to circumvent the generally applicable
rules by locating its hub site on its own property – not even an ordinary customer’s
– and then claiming to also be a customer.” Within a week of this ruling, Indian Peak
abandoned its federal court case.
As if three lawsuits were not enough, Indian Peak sent multiple petitions asking the FCC
to declare the antenna farm exempt from the City’s zoning rules and regulations. On April
17, 2020, Indian Peak filed, and then supplemented on December 10, 2021, its petition
with the FCC seeking preemption of the efforts by the City to abate and remove the illegal
antenna farm. The FCC dismissed that 2020 petition because it failed “to provide
sufficient information to support a showing that each antenna meets all of the criteria
required for protection under [federal law].”
On May 1, 2022, Indian Peak submitted five new petitions again seeking federal law
preemption for its illegal antennas. Indian Peak supplemented these petitions by
submitting five letters between May 8 and July 5, 2022. On July 18, 2022, the FCC
dismissed these five new petitions.
On July 19, 2022, Indian Peak filed a Petition for Reconsideration. On August 3, 2022,
Indian Peak withdrew the First Reconsideration Petition and substituted the Second
Reconsideration Petition. Finally, on December 13, 2022, the FCC dismissed the
reconsideration petition.
On November 1, 2022, a final judgment was entered against Indian Peak and in
favor of the City of Rancho Palos Verdes in the City’s state-court abatement action.
In that final judgment the City was awarded court costs in the amount of $270.30
and attorneys’ fees in the amount of $112,345.50. The City Attorney’s office is now in
the process of collecting these awarded amounts.
While it may seem the wheels of justice move slowly, the fact remains the City Council
persisted and has now prevailed at every level of review. The attached before and after
photographs of this property is the best evidence that persistence will pay off in the long
run. Justice delayed will not result in justice denied.
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01203.0035/824655.1 -1-
THIRD AMENDED JUDGMENT AFTER APPEAL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
CITY OF RANCHO PALOS VERDES, a
municipal corporation,
Plaintiff,
v.
INDIAN PEAK PROPERTIES, LLC, a Nevada
corporation; LUCKY’S TWO WAY RADIO, a
Nevada corporation; JAMES A. KAY, Jr., an
individual; DOES 1 through 20, INCLUSIVE
Defendants.
Case No. 18STCV03781
Assigned for All Purposes to:
Hon. Monica Bachner, Dept. 71
THIRD AMENDED [PROPOSED]
JUDGMENT AFTER APPEAL
Action Filed: November 5, 2018
Trial Date: None Set
On October 29, 2019, Plaintiff City of Rancho Palos Verdes’ Motion for Summary Judgment,
or Alternatively, for Summary Adjudication in the above-captioned matter came on for hearing in
Department 71 of the above-entitled Court, the Honorable Monica Bachner presiding. Plaintiff City of
Rancho Palos Verdes (the “City”) was represented by Alison S. Flowers, Esq., of Aleshire & Wynder,
LLP, and Defendant Indian Peak Properties, LLC (“Defendant”) was represented by Dawn Cushman,
Esq., of Bradley& Gmelich, LLP.
The Court, having considered the papers and arguments of counsel, GRANTED Plaintiff’s
Motion for Summary Judgment, or Alternatively, for Summary Adjudication on the First, Second,
Electronically Received 10/05/2022 11:31 AMA-1
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THIRD AMENDED JUDGMENT AFTER APPEAL
and Third Causes of Action in the City’s First Amended Complaint to Abate a Public Nuisance.
The Court’s decision and entry of judgment was subsequently appealed.
Based upon the remittitur from the Court of Appeal of the State of California, Second
Appellate District, on March 10, 2022, in Case Number B303638, this Court GRANTS the Motion for
Summary Adjudication as to the First and Second Causes of Action. The Court DENIES the City’s
Motion for Summary Judgment and DENIES the Motion for Summary Adjudication as to the Third
Cause of Action, and the Third Cause of Action has been dismissed on May 10, 2022.
On the basis of the foregoing, THE COURT ORDERS, ADJUDGES, AND DECREES as
follows:
1. The Court GRANTS the City’s Motion for Summary Adjudication as to the First and
Second Causes of Action in the City’s First Amended Complaint to Abate a Public Nuisance.
Judgment is hereby entered in favor of Plaintiff City of Rancho Palos Verdes, and against Defendant
Indian Peak Properties, LLC.
2. Defendant’s installation and operation of “commercial antennas,” as defined by Rancho
Palos Verdes Municipal Code section17.96.090, on the property located at 26708 Indian Peak Road,
Rancho Palos Verdes, California, APN 7577-013-030 (the “Property”) are a public nuisance subject
to abatement as provided the Ranchos Palos Verdes Municipal Code.
3. Defendant and its agents, officers, employees, and anyone acting on its behalf, and
their heir and assignees (collectively, “Enjoined Parties”) are permanently enjoined from installing
or operating, or allowing to be installed or operated, and from continued operation of any
unpermitted commercial antennas on the Property, including any and all currently installed
unpermitted commercial antennas.
4. Defendant is ordered to abate immediately the installation and operation of any and all
unpermitted commercial antennas by removing all unpermitted commercial antennas, with the
exception of the DirectTV satellite dish located on the Property.
5. The Enjoined Parties are restrained and enjoined from transferring ownership of the
Property and structures thereon unless they have complied with all applicable orders of this Court.
/ / /
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THIRD AMENDED JUDGMENT AFTER APPEAL
6. As determined by motion, costs in the amount of $270.30, pursuant to this Court’s
order dated February 20, 2020, and attorneys’ fees in the amount of $112,345.50 are hereby awarded
to the City of Rancho Palos Verdes as the prevailing party.
Dated: __________________ _________________________________
MONICA BACHNER
JUDGE OF THE SUPERIOR COURT
11/1/22
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THIRD AMENDED JUDGMENT AFTER APPEAL
PROOF OF SERVICE
City of Rancho Palos Verdes v. Indian Peak Properties, LLC, et al.
LASC Case No. 18STCV03781
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a party to this action. I am employed
in the County of Los Angeles, State of California. My business address is 2361 Rosecrans Ave., Suite
475, El Segundo, CA 90245.
On October 5, 2022, I served true copies of the following document(s) described as THIRD
AMENDED [PROPOSED] JUDGMENT AFTER APPEAL on the interested parties in this action
as follows:
Barry A. Bradley, Esq.
Peter H. Crossin, Esq.
Angela Rossi, Esq.
BRADLEY GMELICH & WELLERSTEIN LLP
700 N. Brand Boulevard, 10th Floor
Glendale, CA 91203
Telephone: (818) 243-5200
Facsimile: (818) 243-5266
Email: bbradley@bgwlawyers.com
pcrossin@bgwlawyers.com
arossi@bgwlawyers.com
Attorneys for Defendant,
INDIAN PEAK PROPERTIES, LLC, a
Nevada LLC
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s) to
be sent from e-mail address lmadrid@awattorneys.com to the persons at the e-mail addresses listed in
the Service List. I did not receive, within a reasonable time after the transmission, any electronic
message or other indication that the transmission was unsuccessful.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
Executed on October 5, 2022, at El Segundo, California.
Lilia E. Madrid
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