NorCal Outdoor Media, LLC v. Becerra ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 NORCAL OUTDOOR MEDIA, LLC, No. 2:19-cv-02338-JAM-DB 11 Plaintiff, 12 v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 13 XAVIER BECERRA, in his official capacity as the 14 Attorney General of California, ADETOKUNBO 15 OMISHAKIN, in his official capacity as Director of the 16 California Department of Transportation, 17 Defendants. 18 19 NorCal Outdoor Media, LLC (“Plaintiff”) continues to pursue 20 its challenge to the California Outdoor Advertising Act (“OAA”), 21 Cal. Bus. & Prof. Code § 5200 et seq., see First Am. Compl. 22 (“FAC”), ECF No. 32, after the Court granted Adetokunbo 23 Omishakin’s (“Defendant”) motion for judgment on the pleadings, 24 see Order Granting Mot. for J. on Plead. (“Order JOP”), ECF No. 25 28. The Court granted Defendant’s previous motion because 26 Plaintiff lacked standing to pursue its claims. Id. Never 27 having sought a permit from the California Department of 28 1 Transportation (“CalTrans”) to erect its billboards, Plaintiff’s 2 injury proved to be purely hypothetical. Id. at 9. 3 Here, too, Plaintiff fails to state a concrete injury under 4 the sign ordinance. As a result, the Court GRANTS Defendant’s 5 Motion to Dismiss (“Mot.”), ECF No. 34.1 6 7 I. OPINION 8 Plaintiff’s FAC alleges the OAA violates its free speech, 9 equal protection, and due process rights under the United States 10 and California Constitutions. See FAC ¶¶ 87–95, 96–102, 107–111. 11 Defendant argues Plaintiff lacks standing, the claims are unripe, 12 and Plaintiff failed to state cognizable claims under either the 13 First and Fourteenth Amendments to the United States Constitution 14 or the California Constitution’s equivalent provisions. See 15 generally Mot. Defendant further argues the Court should decline 16 to exercise supplemental jurisdiction over the state law claims 17 and the prayer for monetary damages violates the Eleventh 18 Amendment to the United States Constitution and California’s 19 Government Claims Act. Id. Plaintiff opposes the motion. 20 Opp’n, ECF No. 35. 21 A. Standing 22 Standing is a “threshold question” in “determining the power 23 of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 24 490, 498 (1975). To establish standing, a “plaintiff must have 25 (1) suffered an injury in fact, (2) that is fairly traceable to 26 27 1 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 March 23, 2021. 1 the challenged conduct of the defendant, and (3) that is likely 2 to be redressed by a favorable judicial decision.” Spokeo, Inc. 3 v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 4 2016). Insofar as the injury in fact is concerned, Plaintiff 5 must show it suffered “an invasion of a legally protected 6 interest” that is “concrete and particularized” and “actual or 7 imminent, not conjectural or hypothetical.” Lujan v. Defs. of 8 Wildlife, 504 U.S. 555, 560–61 (1992). The injury-in-fact test 9 “requires that the party seeking review be himself among the 10 injured.” Sierra Club v. Morton, 405 U.S. 727, 734–35 (1972). 11 This time around, Plaintiff focuses on the fact that non- 12 party San Joaquin County has not issued Plaintiff a sign permit. 13 FAC ¶¶ 51–53. Plaintiff alleges the County has not issued it a 14 sign permit because CalTrans has not issued it an outdoor 15 advertising permit. FAC ¶ 54. However, as before, Plaintiff 16 never applied for a permit with CalTrans. Thus: “Plaintiff was 17 never denied a permit. Which means Plaintiff was never told the 18 reason for the denial, nor given the opportunity to appeal it. 19 This also means that Plaintiff does not know whether the appeal 20 would have been successful or whether it would have resulted in 21 civil penalties.” Order JOP at 7. Plaintiff’s inability to 22 obtain a permit from San Joaquin County is not connected to any 23 action taken by CalTrans. It is only traceable to Plaintiff’s 24 inaction. 25 That CalTrans requires written evidence from Plaintiff that 26 San Joaquin County consents to the billboard as part of its 27 permit application does not prevent Plaintiff from applying for 28 an outdoor advertising permit from CalTrans. See Opp’n at 13; 1 FAC ¶¶ 56, 59. That San Joaquin County will not provide written 2 evidence unless Plaintiff first obtains approval for the 3 billboard from CalTrans raises a potential issue with San Joaquin 4 County’s permitting process, not CalTran’s. As Defendant notes, 5 Plaintiff does not cite any authority that stands for the 6 proposition that San Joaquin County’s failure to issue a permit 7 under its own sign ordinance gives Plaintiff standing to 8 challenge the OAA—an entirely different set of regulations. 9 Reply at 2, ECF No. 38. As a result, the factual allegations in 10 the FAC are not fairly traceable to Defendant. See Spokeo, 136 11 S. Ct. at 1547 (the injury must be fairly traceable to the 12 challenged conduct of the defendant). 13 Plaintiff’s argument that its speech is chilled “because 14 there is no time period by which [CalTrans] must grant or deny a 15 permit application” has no teeth. Opp’n at 13. Pursuant to the 16 OAA, CalTrans “shall, within 10 days after compliance and upon 17 payment by the applicant of the fee provided by this chapter, 18 issue a permit . . . .” Cal. Bus. & Prof. C. § 5358. And 19 Plaintiff’s reliance on Desert Outdoor Advertising Inc. v. City 20 of Moreno Valley, 103 F.3d 814 (9th Cir. 1996) is misplaced. 21 There, the city brought an enforcement action against the 22 plaintiff and compelled the plaintiff to remove its signs. Id. 23 at 818. As a result, the plaintiff had standing to challenge the 24 city’s sign ordinance. Id. Here, CalTrans has not initiated any 25 sort of enforcement action against Plaintiff. 26 Advertising companies like Plaintiff’s do not have standing 27 to challenge the provisions of a sign ordinance that have not 28 been invoked against it. Get Outdoors II, LLC. v. City of San 1 Diego, 506 F. 3d 886, 892 (9th Cir. 2007). No provision of the 2 OAA has been invoked against Plaintiff because Plaintiff has not 3 sought a permit with CalTrans. Plaintiff has not alleged an 4 invasion of a legally protected interest that is either concrete 5 and particularized or actual and imminent. See Lujan, 504 U.S., 6 at 560–61. Considering Plaintiff’s FAC suffers from the same 7 defects as Plaintiff’s original complaint, the Court dismisses 8 Plaintiff’s FAC with prejudice. See Deveraturda v. Globe 9 Aviation Sec. Servs., 454 F.3d 1043, 1049 (9th Cir. 2006) (courts 10 need not grant leave to amend where amendment would be futile). 11 B. Sanctions 12 Plaintiff exceeded the Court’s 15-page limit on opposition 13 memoranda. See Opp’n; see also Order re Filing Requirements 14 (Order), ECF No. 3-2. Violations of the Court’s standing order 15 require the offending counsel (not the client) to pay $50.00 per 16 page over the page limit to the Clerk of the Court. Order at 1. 17 Moreover, the Court will not consider arguments made past the 18 page limit. Id. In total, Plaintiff’s opposition memorandum 19 exceeded the Court’s page limit by 8.5 pages. Plaintiff’s 20 counsel must therefore send a check payable to the Clerk for the 21 Eastern District of California for $425.00 no later than seven 22 days from the date of this order. 23 24 II. ORDER 25 For the reasons set forth above, Defendant’s Motion to 26 Dismiss is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff lacks 27 standing to pursue its claims. Because Plaintiff lacks standing, 28 this Court need not address whether Plaintiff’s claims are ripe nen nen enn no EO I OO EEO 1 or whether Plaintiff adequately stated a claim under Rule 2 12(b) (6). Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 3 1100, 1102 (9th Cir. 2006) (“Because [the plaintiff] lacked 4 standing . . . the district court lacked subject matter 5 jurisdiction and should have dismissed the complaint on that 6 ground alone.”). 7 IT IS SO ORDERED. 8 Dated: April 26, 2021 kA 10 Geren aaa pebrsacr 00k 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28