                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 25 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ZHI G. WANG and XIANGHUI YAN,                    No. 10-16243

              Plaintiffs - Appellants,           D.C. No. 3:09-cv-05838-JSW

  v.
                                                 MEMORANDUM*
CITY OF PLEASANTON and
COMCAST CABLE
COMMUNICATIONS, LLC,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                       Argued and Submitted May 11, 2011
                            San Francisco, California

Before: B. FLETCHER and THOMAS, Circuit Judges, and ROSENTHAL,

District Judge.**



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **
            The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for Southern Texas, Houston, sitting by designation.
      Zhi G. Wang and Xianghui Yan appeal the district court’s grant of summary

judgment against them and subsequent denial of their motion for reconsideration.

Wang and Yan sued Comcast Cable Communications for digging a trench and

installing cable in the public use easement in their front yard. Wang and Yan also

sued the City of Pleasanton, which had awarded Comcast the cable franchise.

Because the parties are familiar with the factual and procedural history of the case,

we need not recount it here. We affirm.

      This appeal is based on arguments and evidence advanced for the first time

when Wang and Yan moved to alter or amend the judgment under Rule 59(e). The

district court refused to consider their newly raised grounds. This refusal was not

an abuse of discretion. Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5

(2008); Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

      The record also shows that the result would have been the same had the

district court reached the merits of the motion to alter or amend the judgment. The

federal and state law grounds that Wang and Yan urge are not a basis for the relief

they seek, given the broad language of the easement that burdens their property and

the fact that Comcast had a cable franchise from the City of Pleasanton. Federal

law allows cable franchisees, such as Comcast, to use easements “dedicated for

compatible uses.” 47 U.S.C. § 541(a)(2); Cable Ariz. Corp. v. Coxcom, Inc., 261


                                          2
F.3d 871, 872 (9th Cir. 2001). The broad easement at issue includes uses for

“poles, wires, conduits, . . . and gas, water and heat mains and all public utilities.”

Cable is compatible with these uses. See Cable Ariz. Corp., 261 F.3d at 875 n.3.

Wang and Yan are incorrect that Comcast’s municipally authorized use of the

easement is a taking under Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982). Loretto held that physical intrusions may be takings, but Loretto

did not involve an authorized use of a broad easement. This court and others have

limited § 541(a)(2)’s reach to public use easements to make the statute consistent

with Loretto. Cable Ariz. Corp., 261 F.3d at 876–77. Comcast’s use of the public

use easement is not, as a matter of law, an unconstitutional taking.

      The result is the same under state law. See Salvaty v. Falcon Cable

Television, 165 Cal. App. 3d 798, 802–05 (Cal. Ct. App. 1985). The argument that

the City abandoned the easement or that its use was limited because it was used

only to plant street trees is unavailing. Under California law, lack of a particular

use is insufficient to show abandonment of a public use easement. See Sharp v.

City of San Diego, No. D052315, 2009 WL 1133094, at *2 (Cal. Ct. App. Apr. 28,

2009) (citing cases).

      Neither attorney suggested that Wang and Yan were raising a claim that

Comcast had failed to restore their front yard after working in the easement to lay


                                           3
the cable. We note that during argument, Comcast’s attorney stated that it would

work with Wang and Yan to resolve any issues that might remain about repairing

their property because of the work that was done.

      AFFIRMED.




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