NorCal Outdoor Media, LLC v. Becerra ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORCAL OUTDOOR MEDIA, LLC, No. 2:19-cv-02338-JAM-DB 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE 14 XAVIER BECERRA, in his PLEADINGS official capacity as the 15 Attorney General of California, ADETOKUNBO 16 OMISHAKIN, in his official capacity as Director of the 17 California Department of Transportation, 18 Defendants. 19 20 This case centers on the California Outdoor Advertising Act 21 (“OAA”), Cal. Bus. & Prof. Code § 5200 et seq. NorCal Outdoor 22 Media, LLC (“Plaintiff”) originally brought this suit against 23 Xavier Becerra, California’s Attorney General,1 and Adetokunbo 24 Omishakin, Director of the California Department of 25 Transportation (“Defendant”). See Compl., ECF No. 1. Plaintiff 26 27 1 Xavier Becerra was voluntarily dismissed by Plaintiff as a defendant on January 30, 2020. See Notice of Voluntary 28 Dismissal, ECF No. 6. 1 alleges the OAA unconstitutionally infringes on its freedom of 2 speech by regulating the display of signs within 660 feet of the 3 right-of-way of any interstate or primary highway in California. 4 Id. Plaintiff seeks declaratory and injunctive relief. Id. 5 Defendant moves for judgment on the pleadings. Mot. for J. on 6 Plead. (“Mot.”), ECF No. 21-2. 7 For the reasons set forth below, the Court GRANTS 8 Defendant’s motion.2 9 10 I. FACTUAL AND PROCEDURAL BACKGROUND 11 The OAA regulates the placement of certain billboards and 12 highways within the state. See Cal. Bus. & Prof. Code § 5200 et 13 seq. Among other things, the OAA regulates the display of signs 14 within 660 feet, and visible from, the right-of-way of any 15 interstate or primary highway in California. Compl. ¶ 14. Some 16 of its provisions restrict the content of displays. See Compl. 17 ¶ 17(a)–(d). The California Department of Transportation 18 (“CalTrans”) is the OAA’s permitting and regulatory authority. 19 Id. Defendant, as director of CalTrans, has the authority to 20 enforce the OAA and its associated regulations. See Cal. Bus. & 21 Prof. Code § 5250. 22 The OAA requires individuals to receive a permit from 23 CalTrans before displaying a billboard along an interstate 24 highway. See id. § 5350; see also Cal. Code Regs. tit. 4, § 2422 25 (setting forth the permit application process). An applicant 26 27 2 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for October 13, 2020. 1 seeking a permit from CalTrans must “offer written evidence” that 2 “the city or county with land use jurisdiction over the property 3 upon which the location is situated have consented to the placing 4 of the advertising display.” Cal. Bus. & Prof. Code § 5354(a). 5 Applicants who are denied a permit have the right to appeal. See 6 Cal. Code Regs. tit. 4, § 2422(c). The OAA contains several 7 exemptions to the permitting requirement. See Compl. ¶ 16. 8 When CalTrans determines that a permanently placed billboard 9 violates the statute—including if a billboard is being displayed 10 without the necessary permit—it can issue a violation notice, 11 which triggers an administrative process through which the 12 alleged violator can contest the alleged violation. See Cal. 13 Code Regs. tit. 4, §§ 2241-42. At the conclusion of this 14 process, an individual who is found to have displayed an 15 advertising billboard without a permit is subject to civil 16 penalties. See Cal. Bus. & Prof. Code § 5485(b). 17 Plaintiff was hired to construct a large billboard in Tracy, 18 California on a parcel of land located at 10837 West Clover Road. 19 Compl. ¶ 6. Sometime in 2019, it constructed the double-sided, 20 thirty-two-square foot billboard within 660 feet of a right-of- 21 way leading onto Interstate 205 (“I-205”). Compl. ¶¶ 7–9. The 22 billboard is visible from I-205 and reads “Trump 2020” on each 23 side. Compl. ¶¶ 8–9. The billboard allegedly conforms with all 24 applicable building standards and engineering requirements. 25 Compl. ¶ 10. However, Plaintiff did not apply for the outdoor 26 advertising permits required by the OAA prior to constructing the 27 billboard. Compl. ¶¶ 28–29. 28 On November 11, 2019, Plaintiff filed its complaint against 1 Defendant alleging the OAA’s exemptions and restrictions violate 2 its free speech and equal protection rights under the United 3 States and California Constitutions. See Compl. ¶¶ 33–38, 43–48. 4 Defendant now moves for judgment on the pleadings, arguing 5 Plaintiff lacks standing and failed to state cognizable claims 6 under either the First and Fourteenth Amendments to the United 7 States Constitution or the California Constitution’s equivalent 8 provisions. See generally Mot. Defendant further argues the 9 Court should decline to exercise supplemental jurisdiction over 10 the state law claims and the prayer for monetary damages violates 11 the Eleventh Amendment to the United States Constitution and 12 California’s Government Claims Act. Id. Plaintiff opposes the 13 motion. Opp’n, ECF No. 22. 14 15 II. OPINION 16 A. Judicial Notice 17 Defendant requests that the Court take judicial notice 18 of eight matters. See Req. for Jud. Notice (“RJN”), ECF 19 Nos. 21, 23-1. Plaintiff does not oppose this request. 20 Rule 201 of the Federal Rules of Evidence allows a 21 court to take judicial notice of an adjudicative fact that 22 is “not subject to reasonable dispute,” because it (1) “is 23 generally known within the trial court’s territorial 24 jurisdiction”; or (2) “can be accurately and readily 25 determined from sources whose accuracy cannot reasonably be 26 questioned.” Fed. R. Evid. 201(a)-(b). This includes 27 “undisputed matters of public record . . . .” Harris v. 28 Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). All 1 the matters identified in Defendant’s judicial notice 2 request are matters of public record. Accordingly, 3 Defendant’s request for judicial notice is GRANTED. 4 B. Standing 5 Standing consists “of two related components: the 6 constitutional requirements of Article III and nonconstitutional 7 prudential considerations.” Franchise Tax Bd. of Calif. v. Alcan 8 Aluminum LTD., 493 U.S. 331, 335 (1990). With regard to Article 9 III, “standing is an essential and unchanging part of the case- 10 or-controversy requirement . . . .” Lujan v. Defs. of Wildlife, 11 504 U.S. 555, 560 (1992). Standing is therefore a “threshold 12 question” in “determining the power of the court to entertain the 13 suit.” Warth, 422 U.S. at 498. To establish standing, a 14 “plaintiff must have (1) suffered an injury in fact, (2) that is 15 fairly traceable to the challenged conduct of the defendant, and 16 (3) that is likely to be redressed by a favorable judicial 17 decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), 18 as revised (May 24, 2016). At the pleading stage “[i]t is the 19 responsibility of the complainant clearly to allege facts 20 demonstrating that he is a proper party to invoke judicial 21 resolution of the dispute and the exercise of the court’s 22 remedial powers.” Warth, 422 U.S. at 518. 23 For Plaintiff to have standing, it must first establish an 24 injury in fact. To do so, Plaintiff must show it suffered “an 25 invasion of a legally protected interest” that is “concrete and 26 particularized” and “actual or imminent, not conjectural or 27 hypothetical.” Lujan, 504 U.S., at 560–61. A concrete injury 28 to the plaintiff must actually exist. Spokeo, 136 S. Ct., at 1 1548 (citations omitted). An “[a]bstract injury is not enough.” 2 City of L.A. v. Lyons, 461 U.S. 95, 101 (1983). “The plaintiff 3 must show that he has sustained or is immediately in danger of 4 sustaining some direct injury as the result of the challenged 5 official conduct . . . .” Id. at 101–02 (internal quotation 6 marks and citations omitted). Moreover, to be particularized, 7 the injury “must affect the plaintiff in a personal and 8 individual way.” Id. (internal quotation marks and citations 9 omitted). The injury-in-fact test “requires that the party 10 seeking review be himself among the injured.” Sierra Club v. 11 Morton, 405 U.S. 727, 734–35 (1972). 12 The prudential requirements of the standing doctrine 13 require that “the plaintiff generally must assert his own legal 14 rights and interests, and cannot rest his claim to relief on the 15 legal rights or interests of third parties.” (internal 16 quotation marks and citation omitted). Alcan Aluminum, 493 U.S. 17 at 336. However, “when a plaintiff states an overbreadth claim 18 under the First Amendment,” the prudential standing doctrine is 19 suspended “because of the special nature of the risk to 20 expressive rights.” Get Outdoors II, LLC v. City of San Diego, 21 Cal., 506 F.3d 886 (9th Cir. 2007). The lawsuit is allowed “to 22 proceed on the basis of a judicial prediction or assumption that 23 the statute’s very existence may cause others not before the 24 court to refrain from constitutionally protected speech or 25 expression.” Id. (internal quotation marks and citation 26 omitted). Nonetheless, even when an overbreadth claim is 27 raised, courts ask “whether the plaintiff has suffered an injury 28 in fact and can satisfactorily frame the issues on behalf of 1 these non-parties.” Id. 2 C. Analysis 3 Allegations as to the OAA’s unconstitutionality are found 4 throughout Plaintiff’s complaint. Plaintiff alleges the OAA is 5 unconstitutional both facially and as applied to it because the 6 act: (1) includes “underinclusive” content- and speaker-based 7 exemptions (in other words, its restrictions are overbroad); 8 (2) compels speech; (3) provides the State with unfettered 9 discretion to deny speech; (4) lacks a cognizable statement and 10 purpose; and (5) contains a substitution clause that 11 inadequately protects First Amendment rights. Compl. ¶ 15. 12 Because of these purportedly unconstitutional defects, Plaintiff 13 believes it was “not required to apply for a permit prior to 14 constructing the [billboard]” and that “it would have been 15 futile [] to apply for [one], as the application would have been 16 rejected based on the content of the [billboard’s speech].” 17 Compl. ¶¶ 28–29. The Court disagrees. 18 Evidence of an injury, is nowhere to be found in 19 Plaintiff’s complaint. Plaintiff does not allege to have sought 20 the consent of the City of Tracy or San Joaquin County to 21 construct the billboard. And Plaintiff did not apply for an 22 outdoor advertising permit from CalTrans before going ahead with 23 the construction. Compl. ¶¶ 28–29. Thus, Plaintiff was never 24 denied a permit. Which means that Plaintiff was never told the 25 reason for the denial, nor given the opportunity to appeal it. 26 This also means that Plaintiff does not know whether the appeal 27 would have been successful or whether it would have resulted in 28 civil penalties. 1 Get Outdoors II is instructive here. There, an advertising 2 company filed several applications for billboard permits with 3 the City of San Diego. Get Outdoors II, 506 F.3d at 889. The 4 city denied all the permit applications pursuant to a provision 5 of its municipal code which prohibits new signs bearing off-site 6 messages. Id. In addition, the city explained that each permit 7 application was missing key documents and that the proposed 8 billboards violated size and height restrictions. Id. at 890. 9 In response, the advertising company filed suit, arguing that 10 the city’s billboard regulations were unconstitutional under the 11 First and Fourteenth Amendments because they favor commercial 12 over noncommercial speech and some types of noncommercial speech 13 over others; that its own rights were violated by the ban on 14 off-site messages and the size and height restrictions; and that 15 the permitting process was an invalid prior restraint. Id. 16 The Ninth Circuit found that the advertising company only 17 had standing to challenge the provisions that were applied to 18 it. Get Outdoors II, 506 F.3d at 892. It lacked standing to 19 challenge the entire sign ordinance. Id. It could not 20 “leverage its injuries under certain, specific provisions to 21 state an injury under the sign ordinance generally.” Id.; see 22 also Covenant Media of South Carolina, LLC v. City of North 23 Charleston, 493 F.3d 421, 429 (4th Cir. 2007) (holding a 24 billboard company’s standing to challenge the permit procedure 25 “does not provide it with a passport to explore the 26 constitutionality of every provision of the Sign Regulation”). 27 Thus, the advertising company had standing to challenge the 28 provisions that were invoked against it but could not challenge 1 the provisions that were not. 2 The key difference between Get Outdoors II and the case at 3 hand is that, here, Plaintiff never sought a permit. Thus, no 4 provision of the OAA was invoked or applied against it. 5 CalTrans did not deny Plaintiff’s permit application because it 6 ran afoul of the OAA by not obtaining county approval or because 7 it did not abide by any of the OAA’s content, size, or location 8 requirements. Thus, Plaintiff has not alleged it suffered an 9 invasion of a legally protected interest that is either concrete 10 and particularized or actual and imminent. See Lujan, 504 U.S., 11 at 560–61. Instead, Plaintiff’s injury is a purely hypothetical 12 one. Id. Federal courts cannot issue advisory opinions in 13 hypothetical cases. Thomas v. Anchorage Equal Rights Comm'n, 14 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc) (The court’s “role 15 is neither to issue advisory opinions nor to declare rights in 16 hypothetical cases, but to adjudicate live cases or 17 controversies consistent with the powers granted the judiciary 18 in Article III of the Constitution.”). 19 Over a month after Plaintiff filed its complaint, San 20 Joaquin County recorded a Notice of Code Violation against the 21 parcel located at 10837 West Clover Road. See Notice of Code 22 Violation, Ex. 3 to RJN. The notice states that the property 23 owner is in violation of California Building Code § 105.1 for 24 constructing a billboard without a permit. Id. The owner of 25 the parcel was notified of the violation on September 10, 2019, 26 about a month before Plaintiff filed its complaint. Id. These 27 facts are irrelevant. Plaintiff did not include this violation 28 in the complaint, nor did it attempt to amend the complaint once nee nnn non nnn enn en nn nO I NED Ee 1 the violation was recorded. Moreover, the citation was not 2 issued or recorded by CalTrans pursuant to the OAA. Plaintiff 3 | was instead cited by San Joaquin County, pursuant to a section 4 of the California Building Code. This citation, and any 5 enforcement action that results from it, are separate and apart 6 from Defendant and his ability to enforce the OAA and its 7 associated regulations. 8 9 Til. ORDER 10 For the reasons set forth above, Defendant’s motion for 11 judgment on the pleadings is granted. Plaintiff lacks standing to 12 pursue its claims and the suit is dismissed without prejudice. 13 See Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 14 1106-07 (9th Cir. 2006) (holding that dismissal for lack of 15 standing should be without prejudice). 16 Because Plaintiff lacks standing, this Court need not 17 address whether Plaintiff’s claims are ripe or whether Plaintiff 18 adequately stated a claim under Rule 12(b). Id. at 1102 19 (“Because [the plaintiff] lacked standing . . . the district 20 court lacked subject matter jurisdiction and should have 21 dismissed the complaint on that ground alone.”). 22 Plaintiff shall file its amended complaint within twenty 23 days of the date of this Order. Defendant’s responsive pleading 24 will be due within twenty days thereafter. 25 IT IS SO ORDERED. 26 Dated: December 21, 2020 27 kA 28 teiren staves odermacr 7008 10