Paramount Contractors & Developers, Inc. v. City of Los Angeles

FILED
NOT FOR PUBLICATION MAR 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PARAMOUNT CONTRACTORS AND No. 11-56536
DEVELOPERS, INC., a California
corporation; et al., D.C. No. 2:08-cv-05653-ABC-
PLA
Plaintiffs - Appellants,
v. MEMORANDUM*
CITY OF LOS ANGELES, a California
municipal corporation and CRA/LA, A
DESIGNATED LOCAL AUTHORITY,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted March 8, 2013
Pasadena, California
Before: PAEZ and WATFORD, Circuit Judges, and CONLON, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Suzanne B. Conlon, District Judge for the United
States District Court for the Northern District of Illinois, sitting by designation.
In this civil rights action under 42 U.S.C. § 1983, Paramount Contractors
and Developers, Inc., Sunset Blvd. Properties, LP, Patricia High and Bradley Folb
(collectively “Paramount”) sought equitable relief and damages for alleged First
Amendment, Equal Protection, and takings violations related to Los Angeles sign
ordinances. Paramount sued the City of Los Angeles (the “City”) and the
Community Redevelopment Association of the City of Los Angeles (“CRA”). In
three separate orders, the district court dismissed all of Paramount’s claims for
failure to state a claim for relief. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
1. To the extent that Paramount challenges the City’s sign ordinances and
their application prior to the November 17, 2010 amendment of the Hollywood
Signage Supplemental Use District (“SUD”), see Los Angeles City Ordinance No.
181340 § 5(B)(11) amending Los Angeles City Ordinance No. 176172, those
challenges are foreclosed by this court’s decision in Paramount Contractors &
Developers, Inc. v. City of Los Angeles, 434 F. App’x 662 (9th Cir.) cert. denied,
132 S. Ct. 502 (2011) (“Paramount I”). See United States v. Johnson, 256 F.3d
895, 915-16 (9th Cir. 2001) (en banc).
2. Paramount also challenges the amended Hollywood SUD, effective as of
November 17, 2010, alleging that under Central Hudson, the ban on supergraphics
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(with a limited grandfather exception) reaches further than is necessary to achieve
its stated goals of aesthetics, traffic safety and economic development.1 See Cent.
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557(1980). Paramount argues that if the original Hollywood SUD, which allowed for
some new supergraphics, met the City’s stated regulatory goals, then a more
restrictive regulation of supergraphics is not sufficiently tailored. We disagree.
“[T]he Central Hudson test requires that the challenged regulation not be ‘more
extensive than is necessary to serve that interest.’ The Supreme Court has clarified
that this requirement does not demand that the government use the least restrictive
means to further its ends.” Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d
898, 906 (9th Cir. 2009) (citation omitted). “Rather, ‘what [precedent] require[s]
is a fit between the legislature’s ends and the means chosen to accomplish those
ends—a fit that is not necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose scope is in proportion to the
interest served; that employs not necessarily the least restrictive means but ... a
means narrowly tailored to achieve the desired objective.’” Id. (quoting Bd. of Trs.
1
To the extent that Paramount challenges L.A. Mun. Code §§ 14.4.4(B)(9)-
(11), this court has upheld the constitutionality of these provisions against similar
challenges. See World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676, 682,
687-89 (9th Cir. 2010).
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of State Univ. of New York v. Fox, 492 U.S. 469, 480 (1989) (internal quotation
marks and citation omitted)).
This court has upheld similar “complete” bans that contain such limited
exceptions. See id. at 911-12; see also Metromedia, Inc. v. City of San Diego, 453
U.S. 490, 508 (1981) (explaining in upholding a ban on billboards that “[i]f the
city has a sufficient basis for believing that billboards are traffic hazards and are
unattractive, then obviously the most direct and perhaps the only effective
approach to solving the problems they create is to prohibit them”).
Moreover, this court has recognized that a city is not bound in perpetuity to a
singular regulatory scheme just because it permitted a certain number of signs
under one scheme. See Metro Lights, 551 F.3d at 910 (noting that the Supreme
Court has “exude[d] deference for a municipality’s reasonably graduated response
to different aspects of a problem”). Similarly, the City did not run afoul of Central
Hudson when it reduced the number of exceptions to the supergraphics ban.
Nor was the City required to set forth factual findings to justify its 2010
amendment to the SUD. See Desert Outdoor Adver., Inc. v. City of Moreno Valley,
103 F.3d 814, 819 n.2 (9th Cir. 1996) (noting that “[i]nsofar as billboards are
concerned . . . [h]ad the City enacted the ordinance with a clear statement of
purpose indicating the City’s interest in eliminating the hazards posed by
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billboards to pedestrians and motorists and in preserving and improving its
appearance, the City would have demonstrated that the ordinance sought to
implement substantial governmental interests, and would thus have satisfied the
first prong of the Central Hudson test”). Here, the City set forth a clear statement
of purpose both when it enacted the original Hollywood SUD and the amended
Hollywood SUD. See Los Angeles City Ordinance No. 181340 § 2; Los Angeles
City Ordinance No. 176172 § 2.
3. Finally, Paramount also seeks damages under a theory that had it been
granted a permit under the original Hollywood SUD, it would have been
grandfathered in under the amended Hollywood SUD. This theory attempts to
accomplish indirectly what Paramount cannot do directly—claim damages that are
precluded by Paramount I. Since Paramount was “not able to demonstrate that any
alleged damages it incurred . . . resulted from application of the provisions of the
Hollywood SUD challenged in the complaint,” 434 F. App’x at 663-64, Paramount
cannot now trace its damages back to its failure to obtain a permanent
supergraphics permit under the original Hollywood SUD.
AFFIRMED.
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