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