Opinion
Case No. CV 19-560-R
2019-04-30
Bruce BOYER, Plaintiff, v. CITY OF SIMI VALLEY, Defendant.
George M. Wallace, Jr., Wallace Brown and Schwartz, Pasadena, CA, for Plaintiff. Justin Reade Sarno, Jill Williams, Steven J. Rothans, Carpenter Rothans and Dumont, Los Angeles, CA, Dion J. O'Connell, Lonnie J. Eldridge, Attorneys Office, Simi Valley, CA, for Defendant.
George M. Wallace, Jr., Wallace Brown and Schwartz, Pasadena, CA, for Plaintiff.
Justin Reade Sarno, Jill Williams, Steven J. Rothans, Carpenter Rothans and Dumont, Los Angeles, CA, Dion J. O'Connell, Lonnie J. Eldridge, Attorneys Office, Simi Valley, CA, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
MANUEL L. REAL, UNITED STATES DISTRICT JUDGE
Before the Court is Defendant City of Simi Valley's Motion to Dismiss, filed on March 11, 2019. (Dkt. No. 16). Having been thoroughly briefed by the parties, this Court took the matter under submission on April 9, 2019.
The focus of Plaintiff Bruce Boyer's ("Plaintiff") First Amended Complaint ("FAC") is Defendant City of Simi Valley's ("Defendant City") adoption and enforcement of ordinances restricting or prohibiting the parking of certain types of vehicles within the city limits, allegedly restricting the exercise of speech rights by means of displays or signs on parked vehicles, and failing to provide due process of law following the seizure and storage of vehicles found in violation of the challenged ordinances. Plaintiff seeks to have the Court determine the enforceability under federal and state law of city ordinances regulating "mobile billboard advertising displays" and restricting the parking of unhitched trailers, and to award Plaintiff damages for Defendant City's alleged unconstitutional conduct, including failing to provide post-seizure hearings following the seizure of Plaintiff's vehicles. The FAC contains two causes of action—(1) for injunctive and declaratory relief and (2) for damages under 42 U.S.C. § 1983 —raised under three legal theories: (a) violation of free speech and expression rights under the First Amendment, (b) state law preemption, and (c) violation of Fourteenth Amendment due process rights. Defendant City moves to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6).
Dismissal under Rule 12(b)(6) is proper when a complaint exhibits either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988). Under the heightened pleading standards of Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face," so that the defendant receives "fair notice of what the ... claim is and the grounds upon which it rests." Twombly , 550 U.S. at 547, 127 S.Ct. 1955 ; Iqbal , 556 U.S. at 698, 129 S.Ct. 1937. "All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001).
FIRST CAUSE OF ACTION: INJUNCTIVE & DECLARATORY RELIEF
Violation of First Amendment Free Speech & Expression Rights
To the extent the FAC is premised on a violation of free speech and expression rights, Plaintiff fails to state a claim on which relief can be granted because the challenged ordinances are reasonable time, place, and manner restrictions and are content-neutral on their face. Although Plaintiff claims to bring his first cause of action under state and federal law, the focus of his free speech and expression argument is the First Amendment of the United States Constitution; therefore, this Court will address that argument under the federal First Amendment framework.
"The First Amendment, as applied to the states through the Fourteenth Amendment, prohibits state and local governments from enacting laws ‘abridging the freedom of speech.’ Certain types of speech regulations are presumptively invalid, including laws that ‘target speech based on its communicative content.’ These kinds of regulations are strictly scrutinized and will be upheld only if ‘they are narrowly tailored to serve compelling state interests.’ " Lone Star Sec. & Video, Inc. v. City of Los Angeles , 827 F.3d 1192, 1195-96 (9th Cir. 2016) (citing Reed v. Town of Gilbert , ––– U.S. ––––, 135 S. Ct. 2218, 2226, 192 L.Ed.2d 236 (2015) (quoting U.S. Const. amend. I )). "Laws affecting speech in traditional public fora like sidewalks and city streets are also presumptively invalid, although the government may impose reasonable time, place, and manner restrictions on speech in traditional public fora so long as the restrictions are content neutral, are ‘narrowly tailored to serve a significant governmental interest,’ and ‘leave open ample alternative channels for communication of the information.’ " Id. (quoting Clark v. Cmty. for Creative Non-Violence , 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) ) (internal citation omitted).
"A regulation is content based if, ‘on its face,’ it ‘draws distinctions based on the message a speaker conveys.’ " Id. at 1198 (quoting Reed , 135 S. Ct. at 2227 ). Simi Valley Municipal Code ("SVMC") § 4-9.601 makes it "unlawful for any person to park or leave standing a mobile billboard advertising display on any public street, alley or public lands in the City." "Mobile billboard advertising display" is defined with reference to California Vehicle Code Section 395.5, which states: "A ‘mobile billboard advertising display’ means an advertising display that is attached to a mobile, nonmotorized vehicle, device, or bicycle, that carries, pulls, or transports a sign or billboard, and is for the primary purpose of advertising." SVMC § 4-9.602; Cal. Veh. Code § 395.5. SVMC § 4-9.603 authorizes the removal, in accordance with Vehicle Code Section 22651(v), of mobile billboards parked or left standing in violation of § 4-9.601.
The Lone Star court found that nearly identical city ordinances regulating mobile billboards were content-neutral and therefore not subject to strict scrutiny. Lone Star , 827 F.3d at 1199. However, Plaintiff seeks to distinguish this case from Lone Star by arguing that, unlike the regulations addressed in Lone Star , the challenged city ordinances here distinguish between speakers. Specifically, SVMC § 4-9.701 provides, "[t]he provisions of this Chapter 9 regulating the operation, parking and standing of vehicles shall not apply to Authorized Emergency Vehicles while on duty or vehicles authorized by the City Engineer or such other City official as may be authorized by the City Manager for construction, repair or maintenance of public or private property."
As the United States Supreme Court stated in Turner Broadcasting Systems v. FCC , " Buckley [v. Valeo , 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)] does not support [the] broad assertion that all speaker-partial laws are presumed invalid [i.e., subject to strict scrutiny]." 512 U.S. 622, 658, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). "Rather, it stands for the proposition that speaker-based laws demand strict scrutiny when they reflect the Government's preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say). " Id. (emphasis added) (citing Regan v. Taxation with Representation of Wash. , 461 U.S. 540, 548, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) ). Here, the "favored speakers" are, as Plaintiff contends, (a) authorized emergency vehicles and (b) other vehicles authorized for the "construction, repair or maintenance of public or private property." SVMC § 4-9.701. Although this is clearly a speaker-based distinction, the distinction does not "reflect the Government's preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say)." Turner Broadcasting , 512 U.S. at 658, 114 S.Ct. 2445. The challenged mobile billboard ordinances are otherwise neutral on their face; therefore, the exemption for emergency and construction vehicles does not destroy their status under Lone Star as content-neutral regulations. The Ninth Circuit found in Lone Star that it is indisputable that a city's "interests in traffic control, public safety, and aesthetics are sufficiently weighty to justify content-neutral, time, place, or manner restrictions on speech." Id. at 1200. "The Supreme Court and [the Ninth Circuit] have repeatedly confirmed that local governments may exercise their police powers to advance these goals by prohibiting intrusive or unsightly forms of expression. Instead, we focus on whether the mobile billboard regulations are narrowly tailored to the cities' interests." Id. at 1200-01 (internal citations omitted). Here, Defendant City seeks to advance the same or similar interests; therefore, this Court will focus on whether the challenged ordinances are narrowly tailored.
A speech regulation is narrowly tailored if it "promotes a substantial government interest that would be achieved less effectively absent the regulation." Ward v. Rock Against Racism , 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citation omitted). The fact that "the government's interest could be adequately served by some less-speech-restrictive alternative" will not invalidate an otherwise reasonable time, place, or manner restriction "[s]o long as the means chosen are not substantially broader than necessary." Id. at 800, 109 S.Ct. 2746. Here, Plaintiff does not allege that the challenged ordinances are overbroad. Rather, the FAC focuses on the distinction between emergency/construction vehicles versus all others. Lone Star holds that such restrictions are narrowly tailored, even if they might not be the absolute least-speech-restrictive option. See Lone Star , 827 F.3d at 1201 (finding that similar challenged regulations are not overbroad and advance city interests in reducing clutter, increasing available street parking, and reducing safety risks to pedestrians and vehicles). Here, as in Lone Star , the Defendant City's goals "would be achieved less effectively absent the challenged regulations." Id.
Lastly, to satisfy the First Amendment, a time, place, and manner regulation must "leave open ample alternative channels for communication." Id. at 1201-02 (citing Clark , 468 U.S. at 293, 104 S.Ct. 3065 ). The FAC does not address this factor; however, even if it did, Lone Star provides controlling authority against Plaintiff's position. "The mobile billboard ordinances leave open adequate alternative opportunities for advertising. The challenged regulations foreclose only one form of expression—mobile billboards .... Appellants are free to disseminate their messages through myriad other channels ...." Id. at 1202. The challenged ordinances here are virtually identical in all material respects. Therefore, under Lone Star , the ordinances leave open ample alternative channels for communication.
Because controlling Ninth Circuit authority in Lone Star holds that mobile billboard ordinances such as these are content neutral, narrowly tailored to serve the governments significant interests, and leave open ample alternative channels of communication, Plaintiff's first cause of action fails to state a claim to the extent it is based on a violation of First Amendment freedom of speech and expression.
State Law Preemption
Plaintiff challenges the Defendant City's ordinance prohibiting the parking of unhitched trailers, but not that regulating mobile billboards, on the basis that it is preempted by California law. Specifically, SVMC § 4-9.402 provides as follows: "(a) No person shall park or leave standing any oversized vehicle ... upon any public street or highway in the City. For the purpose of this section, the term ‘oversized vehicle’ shall mean any vehicle ... or combination of vehicles, which exceeds twenty-three (23') feet in length, seven (7') feet in width, or eight (8') feet in height [.] (b) No person shall park or leave standing any trailer, as defined in Section 630 of the Vehicle Code ... regardless of length or width, when it has been detached from a motor vehicle, upon any public street or highway in the City. A trailer is a vehicle under California Vehicle Code Section 670. See People v. Philpot , 122 Cal. App. 4th 893, 19 Cal.Rptr.3d 280 (2004). Section 630 defines a "trailer" in relevant part as "a vehicle designed for carrying persons or property on its own structure and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon any other vehicle." Cal. Veh. Code § 630.
If Plaintiff did in fact intend to challenge the mobile billboard ordinances on the basis of state law preemption, the FAC fails to state a claim on that basis since regulation of mobile billboard ordinances by local government authorities is expressly permitted under California Vehicle Code Section 21100(m).
Plaintiff contends that SVMC § 4-9.402 exceeds the authority granted to the City under the California Vehicle Code. Vehicle Code § 21 provides that "no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized therein." Under People v. Garth , however, "local authorities may prohibit or restrict the stopping, parking or standing of any type of vehicle on certain streets or highways, or portions thereof, during all or certain hours of the day[.]" 234 Cal. App. 3d 1797, 1800-01, 286 Cal.Rptr. 451 (1991) (emphasis in original) (declining to follow opinion of California Attorney General that "any parking restrictions that a local authority would choose to impose would have to apply to all vehicles or none"); see also Homes on Wheels v. City of Santa Barbara , 119 Cal. App. 4th 1173, 1178, 15 Cal.Rptr.3d 132 (2004) (same). Plaintiff has not presented any argument explaining how the challenged ordinance here differs from those in Garth or Homes on Wheels in any relevant way. Accordingly, under California law, the challenged ordinance restricting the parking of unhitched trailers is not preempted and does not exceed the authority granted to local governments under the California Vehicle Code.
Violation of Due Process
Plaintiff alleges violations of the Fourteenth Amendment right to due process and California Vehicle Code § 22852. The FAC alleges: "As to each of plaintiff's vehicles and other property, upon learning of the seizure and impound, plaintiff has made a request for a post-impound hearing pursuant to Vehicle Code § 22852. As a general matter, the defendant City has refused to provide any such hearing. When hearings have been provided, they have not comported with the requirements of due process. In consequence, plaintiff's vehicles have been permanently lost to plaintiff, as a result of their being sold in a lien sale by the City or its agents, or otherwise disposed of by the City."
"The Fourteenth Amendment prohibits states from ‘depriv[ing] any person of life, liberty, or property, without due process of law.’ U.S. Const. amend. XIV, § 1. The concept of substantive due process "forbids the government from depriving a person of life, liberty or property in such a way that ‘shocks the conscience’ or ‘interferes with rights implicit in the concept of ordered liberty." Nunez v. City of Los Angeles , 147 F.3d 867, 871 (9th Cir. 1998) (quoting United States v. Salerno , 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). "The protection from governmental action provided by substantive due process has most often been reserved for the vindication of fundamental rights." Halverson v. Skagit Cty. , 42 F.3d 1257, 1261 (9th Cir. 1994) (citing Albright v. Oliver , 510 U.S. 266, 114 S. Ct. 807, 812, 127 L.Ed.2d 114 (1994) ). "[W]here, as here, the plaintiffs rely on substantive due process to challenge governmental action that does not impinge on fundamental rights, ‘we do not require that the government's action actually advance its stated purposes, but merely look to see whether the government could have had a legitimate reason for acting as it did.’ " Id. at 1262 (declining to apply substantive due process framework to takings claim) (citing Wedges/Ledges of California, Inc. v. City of Phoenix , 24 F.3d 56, 66 (9th Cir. 1994) ). As discussed above, the Defendant City has a legitimate reason, founded in safety and aesthetics, for enforcing the challenged ordinances and exempting certain emergency and construction vehicles. Accordingly, to the extent Plaintiff's first cause of action is based on a substantive due process violation, the FAC fails to state a claim on which relief can be granted.
As for Plaintiff's claim for violation of procedural due process, "[a] procedural due process claim has two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections." Brewster v. Bd. of Educ. , 149 F.3d 971, 982 (9th Cir. 1998). "The essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it." Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Here, Plaintiff asserts that he was deprived of certain property, his seized vehicles, and that the Defendant City refused or failed to provide the procedural protections required by the California Vehicle Code.
Vehicle Code Section 22852(a) provides that, "[w]henever an authorized member of a public agency directs the storage of a vehicle ... the agency or person directing the storage shall provide the vehicle's registered and legal owners of record, or their agents, with the opportunity for a poststorage hearing to determine the validity of the storage." Under subsection (b)(4), in order to receive their poststorage hearing, the owners, or their agents, shall request the hearing in person, writing, or by telephone within 10 days of the date appearing on the notice." "The poststorage hearing shall be conducted within 48 hours" of such a request. Cal. Veh. Code § 22852(c).
Defendant City counters by pointing to Vehicle Code Section 22651(v) and SVMC § 4-9.603, which both authorize removal and storage of vehicles under certain circumstances. However, Plaintiff does not appear be disputing that his property was removed and stored pursuant to law, but rather contends that when his property was removed and stored, the Defendant City did not provide him with the type of poststorage hearing required by Vehicle Code Section 22852. Neither Section 22852 nor Section 22651(v) explicitly grants local governments the authority to dispose of this hearing requirement, and Defendant City has cited to no law interpreting either Section to do so. Defendant City has not argued that it provided all procedural safeguards required under Section 22852.
Although Plaintiff otherwise states a claim sufficient to survive the present Motion to Dismiss, the FAC does not identify specific instances, or even a range of dates, indicating when and under what circumstances Plaintiff was refused the opportunity for a hearing or received a deficient hearing. Accordingly, Plaintiff has not given the Defendant City fair notice of the grounds upon which the claim rests. Plaintiff is granted leave to make amendments to the complaint as necessary to provide such notice.
SECOND CAUSE OF ACTION: DAMAGES UNDER 42 U.S.C. § 1983
Defendant City asserts that Plaintiff's second cause of action, brought under 42 U.S.C. § 1983, is barred by Heck v. Humphrey and the Rooker - Feldman doctrine. Plaintiff previously pled nolo contendere in a state criminal court for violations of burying and dumping materials, and, as a condition of his probation, Plaintiff agreed "to not leave or place any property or object on any City property of the City of Simi Valley, including public streets, sidewalks, crosswalks, plazas, parks, parking lots or other public areas, and further including all public properly within 200 yards of any City building." Plaintiff agreed to this condition on June 15, 2017.
In Heck v. Humphrey , the United States Supreme Court held that a plaintiff could not maintain a § 1983 action for any "harm caused by actions whose unlawfulness would render [any outstanding] conviction or sentence invalid." 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Defendant City contends that Plaintiff's § 1983 cause of action would, if this Court were to rule in Plaintiff's favor, necessarily imply the invalidity of his nolo contendere plea because the above-quoted condition prohibits Plaintiff from leaving any property, including mobile billboards, on City property to begin with. The FAC does not identify specific dates, or even a range of dates, on which the alleged due process violations occurred. The challenged mobile billboard ordinances were enacted in 2016, and the unhitched trailer ordinance was enacted in 2000, indicating that either or both may have been enforced against Plaintiff prior to his plea agreement. Accordingly, it is unclear at this stage, without the amendments to the complaint as ordered above, whether Plaintiffs vehicles were parked in violation of the terms of his probation when they were allegedly seized and disposed of without the required poststorage hearing.
In any case, whether Plaintiff violated the terms of his probation is not an issue that should be analyzed under Heck v. Humphrey. A finding that the Defendant City failed to provide the required hearing would not necessarily imply the invalidity of Plaintiff's nolo contendere plea or his probation agreement. Even if Plaintiff's vehicles were parked in violation of that agreement, that would establish only that he violated the terms of his probation, not that the nolo contendere plea itself was invalid. Moreover, that plea was made on charges of accumulation and burying/dumping of waste, not any violation of the ordinances challenged in this case. Defendant City has not identified any relationship between those charges and the allegations in this case that would cause the Heck doctrine to apply. Accordingly, this Court finds that it does not.
The Rooker - Feldman doctrine, which prohibits a party from taking a position that would effectively re-litigate issues decided adversely against him in a criminal court of law, likewise does not apply. Rooker v. Fidelity Trust Co. , 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) ; D.C. Court of Appeals v. Feldman , 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Application of the Rooker - Feldman doctrine "is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Again, Defendant City has failed to explain or identify any relevant connection or relationship between Plaintiff's prior criminal case and the city ordinances being challenged here. It is not apparent on the face of the FAC, or based on any obvious inference, that Plaintiff is seeking to reverse the state-court judgment against him or that the issues in this case are "inextricably intertwined" with that state-court judgment. Feldman , 460 U.S. at 486-87, 103 S.Ct. 1303. Accordingly, the Rooker - Feldman doctrine does not apply.
IT IS HEREBY ORDERED that Defendant City of Simi Valley's Motion to Dismiss is GRANTED with partial leave to amend. (Dkt. No. 16). Specifically, the Motion is granted without leave to amend as to Plaintiff's first cause of action for injunctive and declaratory relief, to the extent it is brought under the legal theories of (a) violation of the First Amendment and (b) state law preemption. The Motion is granted with leave to amend as to Plaintiff's first cause of action, to the extent it is brought under the legal theory of violation of procedural due process, and as to Plaintiff's second cause of action for damages under 42 U.S.C. § 1983, to the extent it is based on such procedural due process violations.
IT IS FURTHER ORDERED that Plaintiff Bruce Boyer shall file a Second Amended Complaint in accordance with this Order no later than May 14, 2019. Defendants' response to the Second Amended Complaint is due no later than May 28, 2019.