The Folb Partnership et al v. City of Los Angeles et al

NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint

C.D. Cal.October 21, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MICHAEL N. FEUER, City Attorney (SBN 111529*) TERRY KAUFMANN MACIAS, Assistant City Attorney (SBN 137182) KENNETH T. FONG, Deputy City Attorney (SBN 140609) YONGDAN LI, Deputy City Attorney (SBN 265281) 200 North Main Street City Hall East Room 701 Los Angeles, California 90012-4131 Telephone: (213) 978-8202 Facsimile: (213) 978-8090 Email: kenneth.fong@lacity.org Attorneys for Defendant CITY OF LOS ANGELES UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF LOS ANGELES THE FOLB PARTNERSHIP, a California partnership and PARAMOUNT CONTRACTORS AND DEVELOPERS, INC., a California corporation, Plaintiffs, v. CITY OF LOS ANGELES, a California municipal corporation and DOES 1 through 10, inclusive, Defendant. Case No. CV-15-06153 FMO (PJW) Hon. Fernando M. Olguin DEFENDANT CITY OF LOS ANGELES’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT (FRCP Rule 12(b)(6)) [Filed concurrently with City of Los Angeles’ Notice of Motion to Dismiss The First Amended Complaint; Declaration of Kenneth T. Fong; Request for Judicial Notice] Hearing: Date: December 8, 2016 Time: 10:00 a.m. Department: 22 Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 1 of 27 Page ID #:903 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on December 8, 2016, at 10:00 a.m., or as soon thereafter as counsel may be heard in Courtroom 22 of the Honorable Fernando Olguin, United States District Court Judge, of the United States Courthouse, 312 North Spring Street, Los Angeles, California, 90012-4701, defendant CITY OF LOS ANGELES (the “City”) will move the Court to dismiss plaintiff THE FOLB PARTNERSHIP’S (“Folb’s”) First Amended Complaint (“First Amended Complaint”) for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). The present Motion to Dismiss is based on this Notice of Motion, the attached Memorandum of Points and Authorities, the concurrently filed Declaration of Kenneth T. Fong and Request for Judicial Notice, the pleadings and other papers filed herein, and any oral argument to be made before the court. This Motion to Dismiss is made following the conference of counsel pursuant to L.R. 7-3 which took place on October 11, 2016, and is described in the accompanying Declaration of Kenneth T. Fong. Dated: October 21, 2016 MICHAEL N. FEUER, City Attorney TERRY KAUFMANN MACIAS, Asst. City Attorney KENNETH T. FONG, Deputy City Attorney YONGDAN LI, Deputy City Attorney By /S/ KENNETH T. FONG KENNETH T. FONG Deputy City Attorney Attorneys for Defendant CITY OF LOS ANGELES Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 2 of 27 Page ID #:904 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i TABLE OF CONTENTS PAGE(S) TABLE OF AUTHORITIES ....................................................................................... iii MEMORANDUM OF POINTS AND AUTHORITIES ............................................. 1 I. INTRODUCTION ............................................................................................. 1 II. BACKGROUND ............................................................................................... 2 A. The regulatory scheme governing temporary signs ................................ 2 B. Folb’s application for sign permits. ........................................................ 2 III. LEGAL STANDARD ....................................................................................... 3 IV. DISCUSSION .................................................................................................... 4 A. Folb’s new facial challenge should be dismissed ................................... 4 1. Folb’s new facial challenge is barred by the Court’s September 14, 2016 Order ............................................................ 4 2. Folb’s facial challenge is foreclosed on the merits....................... 5 a. Folb admits that its proposed temporary signs are off-site signs, which are subject to the City’s off-site sign ban ...... 5 b. No provisions of the City’s sign regulations exempt temporary off-site signs from the off-site ban .................... 6 3. Folb’s facial challenge to LAMC § 14.4.16 based on the word’s “political” and “ideological” lacks merit ...................................... 7 Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 3 of 27 Page ID #:905 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii TABLE OF CONTENTS PAGE(S) B. Folb’s as-applied challenge should be dismissed ................................... 8 1. Folb’s as-applied challenge is not ripe. ........................................ 8 2. The majority of the allegations in the First Amended Complaint do not satisfy federal pleading standards .................................... 10 a. Folb’s “Common Allegations” are purely conclusory ..... 11 b. Folb’s allegations under the “First Cause of Action” are conclusory. ........................................................................ 12 3. Folb’s as-applied challenge to the City’s off-site sign ban fails on the merits. .................................................................................... 15 V. CONCLUSION ............................................................................................... 19 Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 4 of 27 Page ID #:906 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii TABLE OF AUTHORITIES PAGE(S) CASES Andrews v. Metro North Commuter R.R. Co. 882 F.2d 705 (2d Cir. 1989) .......................................................................... 14 Ashcroft v. Iqbal (“Iqbal”) 556 U.S. 662 (2009) .................................................................. 3, 4, 10, 12, 19 Atieh v. Riordan 727 F.3d 73 (1st Cir. 2013) ........................................................................... 11 Bell Atl. Corp. v. Twombly 550 U.S. 544 (2007) ............................................................ 3, 4, 10, 11, 14, 19 Blantz v. California Department of Corrections and Rehabilitation (9th Cir. 2013) 727 F.3d 917 ........................................................................... 19 Caviness v. Horizon Cmty. Learning Ctr., Inc. 590 F.3d 806 (9th Cir. 2010) ............................................................................ 3 Center for Bio-Ethical Reform, Inc. v. Napolitano 648 F.3d 365, 374 (11th Cir. 2011) .......................................................... 12, 15 Central Hudson Gas & Electric Corp. v. Public Service Commission 447 U.S. 557, 100 S. Ct. 2343 (1980) ................................................ 15, 16, 18 Charles v. City of Los Angeles 697 F.3d 1146 (9th Cir. 2012) .......................................................................... 8 Cholla Ready Mix, Inc. v. Civish 382 F.3d 969 (9th Cir. 2004) ............................................................................ 3 Cook v. Brewer (“Cook”) 637 F.3d 1002 (9th Cir. 2011) ......................................................................... 3 Digital Properties, Inc v. City of Plantation (“Digital Properties”) 121 F.3d 586 (11th Cir. 1997) ................................................................... 9, 10 Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 5 of 27 Page ID #:907 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv TABLE OF AUTHORITIES, CONT’D. PAGE(S) CASES, CONT’D. Franklin v. Murphy 745 F.2d 1221 (9th Cir. 1984) ..................................................................... 4, 6 Hibbs v. Winn 542 U.S. 88 (2004) .......................................................................................... 7 Johnson v. City of Shelby, Miss. 135 S. Ct. 346 (2014) .................................................................................... 10 Lamar Central Outdoor, LLC v. City of Los Angeles 245 Cal. App. 4th 610 (2016) ....................................................... 15, 16, 17, 18 Levin v. Miller 763 F.3d 667, 671 (7th Cir. 2014) ................................................................. 10 Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent 466 U.S. 789 (1984) ........................................................................................ 4 Mendiondo v. Centinela Hosp. Med. Ctr. 521 F.3d 1097 (9th Cir. 2008) ......................................................................... 4 Metro Lights, LLC v. City of Los Angeles 551 F.3d 898 (2009) ................................................................................ 17, 18 Metromedia v. City of San Diego 453 U.S. 490, 101 S. Ct. 2882 (1981) ................................................... 16, 17 Moss v. U.S. Secret Service 572 F.3d 962 (9th Cir. 2009) ................................................................. 13, 14 Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C. 692 F.3d 283, 303(3d Cir. 2012) ................................................................. 10 Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 6 of 27 Page ID #:908 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v TABLE OF AUTHORITIES, CONT’D. PAGE(S) CASES, CONT’D. Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Retirement Plan v. Morgan Stanley Investment Mgmt. Inc. 712 F.3d 705 (2d Cir. 2013) ........................................................................ 11 SEC v. Tambone 597 F.3d 436 (1st Cir. 2010) ....................................................................... 12 Somers v. Apple, Inc. 729 F.3d 953 (9th Cir. 2013) ......................................................................... 11 Vanguard Outdoor, LLC v. City of Los Angeles 648 F.3d 737 (9th Cir. 2011) ......................................................................... 19 World Wide Rush, LLC v. City of Los Angeles 606 F.3d 676 (9th Cir. 2010) ......................................................................... 18 STATUTES Federal Rules of Civil Procedure: Rule 8(a)(2) .................................................................................................... 10 Rule 12(b)(6) ....................................................................................... 3, 15, 19 Rule 12(e) ..................................................................................................... 11 Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 7 of 27 Page ID #:909 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vi TABLE OF AUTHORITIES (CONT’D) PAGE(S) OTHER AUTHORITY Los Angeles Municipal Code Section 14.4.2 .................................................................................................. 6 Section 14.4.3 A .......................................................................................... 2, 5 Section 14.4.3 C........................................................................................... 6, 7 Section 14.4.3 D .................................................................................. 2, 4, 6, 7 Section 14.4.4 A .......................................................................................... 2, 7 Section 14.4.4 B 11 ................................................................................. 4, 5, 6 Section 14.4.5 .............................................................................................. 2, 7 Section 14.4.6 .............................................................................................. 2, 7 Section 14.4.16 ............................................................................................ 2, 7 Section 14.4.17 ............................................................................................ 2, 7 Section 91.6205 ........................................................................................... 2, 7 Section 91.6207 ........................................................................................... 2, 7 Section 98.0403.1(b)2 ..................................................................................... 9 Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 8 of 27 Page ID #:910 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The Court has already dismissed most of the claims in this action, including all of Plaintiff Paramount Contractor & Developers’ (“Paramount”) claims. The Court also dismissed all of Plaintiff The Folb Partnership’s (“Folb”) facial claims, but did grant Folb leave to amend its as-applied claim regarding permits for temporary off-site signs at 3500 Overland Avenue. Folb filed its First Amended Complaint on September 30, 2016. Docket Information (“D.I.”) 52. Folb’s First Amended Complaint should be dismissed in its entirety. Folb brings a new facial challenge to the City’s off-site sign ban, but it violates the Court’s September 14, 2016 order expressly forbidding Folb from adding any new claims to the First Amended Complaint. D.I. 51 at 19-20. Folb’s facial challenge is also foreclosed on the merits because it contradicts well settled principles of statutory interpretation. Folb’s amended as-applied challenge fares no better. It is not ripe for adjudication because, as Folb admits in its First Amended Complaint, the City failed to fully consider Folb’s applications. In addition, Folb’s as-applied challenge fails to satisfy federal pleading standards. As the Court noted, the original complaint was wholly deficient in pleading the as-applied challenge. The original complaint did not contain any allegation regarding the 3500 Overland Avenue site, let alone any allegation to support Folb’s as- applied claim concerning the site, other than briefly mentioning that Folb owns a commercial building at 3500 Overland and applied for permits for temporary signs at the location. See Complaint at ¶¶ 1, 13. Folb tries to salvage its as-applied claim by adding a number of conclusory and speculative allegations. These allegations are insufficient to save Folb’s as-applied claim for two reasons. First, these allegations are not “plausible,” as required by federal pleading standards. Second, given the extreme and serious nature of those Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 9 of 27 Page ID #:911 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 allegations, the only logical explanation for why Folb did not include even a single one of them in the original complaint is that they are untrue and were manufactured solely to keep Folb’s as-applied challenge alive. Even if the Court were to reach the merits of Folb’s as-applied challenge, Folb’s challenge pursues the same dead-end track as past, failed challenges to the off-site ban under the First Amendment. In each of those past challenges, the Ninth Circuit Court of Appeals or the California Court of Appeal rejected the challenge and upheld the ban. II. BACKGROUND A. The regulatory scheme governing temporary signs. Most of the City of Los Angeles’ citywide sign regulations are set forth in Article 4.4 of the City of Los Angeles Municipal Code. City’s Request for Judicial Notice (“RJN”), Exh. A. Los Angeles Municipal Code (“LAMC”) § 14.4.3 A provides that all signs and billboards in the City, including temporary signs, are subject to the Citywide sign regulations set forth in Article 4.4 of the Municipal Code: “[a]ll exterior signs . . . shall conform to the requirements of this article and all other applicable provisions of this Code.” RJN, Exh. A. LAMC § 14.4.3 D sets forth a list of provisions of the Citywide sign regulations that apply to temporary signs. “The following provisions of this Code, as applicable, shall apply to temporary on-site and off-site signs: Sections 14.4.4 A; 14.4.5; 14.4.6; 14.4.16; 14.4.17; 91.6205; and 91.6207.” RJN, Exh. A. L.A.M.C § 14.4.16 is a provision of the citywide sign regulations that imposes time, place and manner restrictions on temporary signs. § 14.4.16 requires a sign permit for temporary signs that display commercial messages but does not require a sign permit for temporary signs that display noncommercial messages. RJN, Exh. A. A temporary sign may be displayed for up 30 days at a time, and not more than a total of 90 days in a calendar year. RJN, Exh. A. Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 10 of 27 Page ID #:912 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 B. Folb’s application for sign permits. Folb’s representative submitted an application “for permits to erect and maintain ‘temporary signs’ to display off-site messages for up to 30 days at 3500 Overland” to “an employee of the Los Angeles Department of Building and Safety.” First Amended Complaint at ¶¶ 6-7. The City employee allegedly “refused to process or approve Plaintiff’s application and, in fact, failed to even fully consider it,” and the First Amended Complaint alleges that “it is futile to make any further attempts to obtain permits” for the proposed signs. Id. at ¶ 8. Folb therefore brought this lawsuit without filing an administrative appeal of the City employee’s alleged failure to process or fully consider Folb’s application for sign permits. III. LEGAL STANDARD A motion to dismiss for failure to state a claim should be granted if plaintiff fails to proffer “enough facts to state a claim to relief that is plausible on its First Amended Complainte.” Bell Atl. Corp. v. Twombly (“Twombly”), 550 U.S. 544, 570 (2007); see also, Ashcroft v. Iqbal (“Iqbal”), 556 U.S. 662, 678 (2009); Cook v. Brewer (“Cook”), 637 F.3d 1002, 1004 (9th Cir. 2011). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 12 at 678; see also, Cook, 637 F.3d at 1004; Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010). Although, in considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a court accepts all facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff, there are limitations. See Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citation omitted), cert. denied, 544 U.S. 974 (2005). As the Ninth Circuit explained: [T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. Nor is the court required to accept as true allegations Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 11 of 27 Page ID #:913 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Id. The plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555; see also, Iqbal, 556 U.S. at 678. Furthermore, dismissal for failure to state a claim can be warranted based on either a lack of a cognizable legal theory or the absence of factual support for a cognizable legal theory. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint may also be dismissed for failure to state a claim if it discloses some fact or complete defense that will necessarily defeat the claim. See Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984). IV. DISCUSSION A. Folb’s new facial challenge should be dismissed. 1. Folb’s new facial challenge is barred by the Court’s September 14, 2016 Order. In the First Amended Complaint, Folb challenges the applicability of the City’s off-site sign ban (LAMC § 14.4.4 B 11) to Folb’s proposed temporary signs. Folb argues that because LAMC § 14.4.3 D lists provisions that apply to temporary signs, but that list does not include the City’s ban on off-site signs in LAMC § 14.4.4 B 11, the ban does not apply to temporary signs. See D.I. 52 at ¶¶ 10-14, 16. This challenge is a facial challenge because it is based on a reading of the face of the sign regulations themselves, as opposed to the application of those regulations. Further, this challenge fits the court’s definition of a facial challenge because it challenges the enforceability of the ban to all temporary signs “in every conceivable application,” not just to Folb’s proposed signs. See Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797 (1984)(“. . . a statute or ordinance may be considered invalid ‘on its face’ - either because it is Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 12 of 27 Page ID #:914 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally ‘overbroad.’”). This facial challenge is completely barred by the Court’s September 14, 2016 order. If this facial challenge is a continuation of Folb’s facial challenge in the original complaint, this facial challenge is barred by the Court’s order that “Folb’s facial challenge is dismissed with prejudice.” D.I. 51 at 19-20. On the other hand, if this facial challenge is a new claim, it is barred by the Court’s order that “Folb may not add any new claims or parties to the First Amended Complaint.” D.I. 51 at 19-20. 2. Folb’s facial challenge is foreclosed on the merits. This challenge is also foreclosed on the merits, as discussed below. a. Folb admits that its proposed temporary signs are off-site signs, which are subject to the City’s off- site sign ban. Folb freely admits in the First Amended Complaint that its proposed temporary signs are off-site signs: “Plaintiff applied for permits to erect and maintain “temporary signs” to display off-site messages for up to 30 days at 3500 Overland.” D.I. 52 at ¶ 6 (emphasis added). Folb also refers to its proposed signs as “off-site signs” elsewhere in the First Amended Complaint. See id. at ¶ 17. In light of Folb’s admission that its proposed signs are off-site signs, Folb’s claim in the First Amended Complaint that the off-site sign ban in LAMC § 14.4.4(B)(11) does not apply to its proposed off-site sign is disingenuous. The ban (“Signs are prohibited if they . . .[a]re off-site signs.”)(RJN, Exh. A.) by its plain language is enforceable against Folb’s proposed, self-admitted off-site signs. There is another reason why Folb’s proposed temporary signs are subject to the ban. LAMC § 14.4.3 A, which sets forth the general scope of Article 4.4 (the citywide sign regulations), provides that all exterior signs are Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 13 of 27 Page ID #:915 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 subject to the requirements of the citywide sign regulations. Id. Folb’s proposed temporary signs are exterior signs because, in Folb’s own words, Folb’s application for permits was for signage to be located on the exterior, not the interior, of its building: “for signage on its building located at 3500 Overland.” See D.I. 52 at ¶ 5 (emphasis added). The citywide sign regulations include the City’s off-site sign ban in LAMC § 14.4.4(B)(11). Thus, Folb’s sign, as an “exterior sign,” is subject to the ban. b. No provisions of the City’s sign regulations exempt temporary off-site signs from the off-site ban. The City’s sign regulations do not contain any language expressly exempting temporary signs from the off-site ban. The section that imposes the ban, LAMC § 14.4.4(B)(11), contains an explicit “EXCEPTIONS” section, but temporary signs are not listed as one of the exceptions. Nor does the definition of “off-site signs”1 in LAMC § 14.4.2 exclude temporary signs. Id. Folb mentions neither of these provisions in the First Amended Complaint. See D.I. 52. Instead, Folb argues that temporary off-site signs are exempt from the City’s off-site sign ban because LAMC § 14.4.3 D sets forth a list of specific Code sections that apply to temporary signs, and the City’s off-site sign ban is not on this list. However, a closer look at the “plain and commonsense meaning” of LAMC § 14.4.3 D and its immediately preceding subsection, LAMC § 14.4.3 C, strongly refutes Folb’s construction. See Murphy, 25 Cal. 4th 136, 142 (2001)(“We must harmonize ‘the various parts of a 1 “Off-site sign” is defined as: A sign that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution or any other commercial message, which is generally conducted, sold, manufactured, produced, offered or occurs elsewhere than where the sign is located. LAMC § 14.4.2. Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 14 of 27 Page ID #:916 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 statutory enactment … by considering the particular clause or section in the context of the statutory framework as a whole.’”). These two subsections read as follows: C. Off-Site Signs. The following provisions of this Code, as applicable, shall apply to off-site signs: Sections 14.4.4A; 14.4.5; 14.4.6; 14.4.18; 91.6205; and 91.6207 D. Temporary Signs. The following provisions of this Code, as applicable, shall apply to temporary on-site and off-site signs: Sections 14.4.4A; 14.4.5; 14.4.6; 14.4.16; 14.4.17; 91.6205; and 91.6207. RJN, Exh. A. First, LAMC § 14.4.3 D does not state that its list is exhaustive. Second, the fact that LAMC § 14.4.3 C sets forth a similar list of specific Code section that apply to off-site signs is instructive. LAMC § 14.4.3 C’s list, like LAMC § 14.4.3 D’s list, does not include the City’s off-site sign ban. Under Folb’s logic, LAMC § 14.4.3 C would be interpreted so that the off-site sign ban does not apply to off-site signs. But this absurd result would not only defy common sense, it would render the off-site sign ban superfluous, in defiance of a well settled canon of statutory construction. Hibbs v. Winn, 542 U.S. 88, 101 (2004) (“‘A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .’”) (citation omitted). For all these reasons, the only reasonable interpretation of LAMC § 14.4.3 D is that it does not exempt temporary signs from the off-site ban. 3. Folb’s facial challenge to LAMC § 14.4.16 based on the word’s “political” and “ideological” lacks merit Folb asserts in a footnote in the First Amended Complaint: LAMC section 14.4.16 states that a permit is required for all temporary signs, but goes on to exempt those advertising “a political, ideological or Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 15 of 27 Page ID #:917 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 other noncommercial message.” However, the LAMC fails to provide a definition of these terms sufficient to allow Plaintiff to display its temporary signs without fear of fines and possible criminal prosecution. D.I. 52 at p. 3, n. 1. This is another new facial challenge that contravenes the Court’s order forbidding the addition of any new claims to this action. Further, this new claim lacks merit. See D.I. 51 at 19-20. As the Court held in its ruling on the City’s Motion to Dismiss Folb’s original complaint, “the City’s temporary sign exemptions distinguish only between noncommercial and commercial speech as a whole.” D.I. 51 at 16. The Court further held that “. . . the City does not ‘single out’ temporary signs with political or ideological messages” but, rather, “. . .the City exempts temporary signs containing any noncommercial message from the permit requirement. Id. Thus, because the City’s sign regulations do not distinguish among these terms (“political,” “ideological,” and “other noncommercial message”), there is no need for the City to define them. As to the distinction between noncommercial and commercial speech on temporary signs, the Ninth Circuit has already upheld the City’s ability to make that distinction. In Charles v. City of Los Angeles, 697 F.3d 1146 (9th Cir. 2012), the Ninth Circuit upheld the City’s authority to determine that a temporary sign displaying “the logo for the television show ‘E!News,’ and photographs of the show’s hosts, Ryan Seacrest and Giuliana Rancic” was commercial rather than noncommercial speech. B. Folb’s as-applied challenge should be dismissed. 1. Folb’s as-applied challenge is not ripe. Folb alleges that the City failed to “process” or “even fully consider” its application in an apparent attempt to show that “. . . under no circumstances, would the City accept or approve of Plaintiff’s permit applications.” D.I. 52 at ¶ 8. Even taking these allegations in the light most favorable to Folb, the as-applied challenge is not ripe. Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 16 of 27 Page ID #:918 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 The facts as alleged by Folb are strikingly similar to those in Digital Properties, Inc v. City of Plantation (“Digital Properties”), 121 F.3d 586 (11th Cir. 1997). In that case, the plaintiff informed an assistant zoning technician of plaintiff’s desire to change the use of a building from a restaurant to an adult bookstore. The zoning technician informed plaintiff that “the City of Plantation does not allow such use” and refused to accept the plans. The zoning technician also advised the plaintiff to speak with the city’s director of building and planning regarding the proposed change of use. Id. at 588-89. The Digital Properties court concluded that the plaintiff “in its haste to preserve its perceived First Amendment rights, failed to present a mature claim for review.” Id. at 590. The court explained that “[a] challenge to the application of a city ordinance does not automatically mature at the zoning counter. In order for the City to have ‘applied’ the ordinance to Digital, a city official with sufficient authority must have rendered a decision regarding Digital’s proposal.” Id. Thus, “Digital’s impatience precluded the formation of a concrete case or controversy” and “[w]ithout the presentation of a binding conclusive administrative decision, no tangible controversy exists.” Id. Consequently, the court upheld dismissal of the plaintiff’s First Amendment claims for lack of ripeness. Similarly, Folb’s present as-applied challenge to the City’s off-site sign ban is not ripe. By Folb’s own admission, City staff “refused to process or approve Plaintiff’s application and, in fact, failed to even fully consider it.” D.I. 52 at ¶ 8. Because Folb’s application was not “processed” or “fully considered,” the application, like the application for the adult bookstore in Digital, is not a sufficiently concrete decision that is ripe for adjudication. Folb had the option of filing an appeal regarding its sign application to the Los Angeles Board of Building and Safety Commissioners under LAMC § 98.0403.1(b)2, but chose not to. Folb will argue that it had no duty to file an administrative appeal because the City had already demonstrated that it would inevitably reject the Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 17 of 27 Page ID #:919 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 application and thus the appeal would be futile. This argument was rejected in Digital. In Digital, the court explained that the litigant had prematurely filed its lawsuit based “upon its anticipated belief that Plantation would interpret the P.C.O. [the City of Plantation’s municipal code] in such a way as to violate Digital’s First Amendment rights.” Digital, 121 F.3d at 590-91. But because the municipal code had not been actually “applied” to the litigant by a “city official with sufficient authority,” the subsequent lawsuit filed by the litigant “only constitute[d] a potential dispute,” which the Digital court lacked subject matter jurisdiction to consider. Id. at 590-91. This is true here too. Even if Folb’s as-applied challenge were ripe, it still fails on the merits, as discussed in Section B 3, below. 2. The majority of the allegations in the First Amended Complaint do not satisfy federal pleading standards. A pleading’s factual allegations must show “that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). To do so, the pleading must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (emphasis added) (claim of Sherman Act violation requires enough factual allegations to suggest illegal agreement was made); see also, Iqbal, 556 U.S. at 678 (2009); Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2014)(per curiam)(Twombly and Iqbal require that plaintiff “plead facts sufficient to show that her claim has substantive plausibility.”) This rule requires that a party “demonstrate the plausibility, as opposed to conceivability, of its causes of action in the complaint.” Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 303 (3d Cir. 2012)(emphasis added); see also, Levin v. Miller, 763 F.3d 667, 671 (7th Cir. 2014)(stating that the Supreme Court in Twombly and Iqbal “wrote that judges may bypass implausible allegations and insist that complaints contain enough detail to allow courts to separate fantasy from claims worth litigating.”). Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 18 of 27 Page ID #:920 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 The purpose of the plausibility requirement is “to prevent settlement extortion- using discovery to impose asymmetric costs on defendants in order to force a settlement advantageous to the plaintiff regardless of the merits of his suit.” Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Retirement Plan v. Morgan Stanley Investment Mgmt. Inc., 712 F.3d 705, 719 (2d Cir. 2013); Atieh v. Riordan, 727 F.3d 73, 76 (1st Cir. 2013) (“The plausibility standard is a screening mechanism designed to weed out cases that do not warrant either discovery or trial”); Twombly, supra, 550 U.S. at 558-559, 127 S. Ct. at 1966-67; see also, Somers v. Apple, Inc., 729 F.3d 953, 966 (9th Cir. 2013) (“specificity of First Amended Complaints is warranted before permitting a case to proceed into costly and protracted discovery in an antitrust case”).tam The majority of the allegations in the First Amended Complaint do not meet the federal pleading requirements2 for the following reasons: a. Folb’s “Common Allegations” are purely conclusory. Much of the “Common Allegations” portion of the First Amended Complaint consists of purely conclusory allegations that are nothing but plaintiff’s speculative personal opinions, for example:  Plaintiff is informed and believes that City has carried on a years-long vendetta against Plaintiff and its affiliated persons and enterprises, treating them differently than other persons and companies in the same business who curried favor with the City. D.I. 52 at ¶ 8 (emphasis added); 2 Also, Fed. R. Civ. P. 12(e) allows a party to move for a more definite statement of a pleading which “is so vague or ambiguous that the [opposing] party cannot reasonably prepare a response.” Plaintiff’s allegations are so vague and ambiguous that they fail to meet the federal pleading standards and likely also fail to provide a sufficiently definite pleading under FRCP 12(e). However, the City would prefer that the Court outright dismiss the First Amended Complaint rather than grant Folb another opportunity to amend. The Court has already given Folb more than sufficient opportunity to set forth its case. Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 19 of 27 Page ID #:921 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12  Plaintiff is informed and believes and thereon alleges that the City’s Department of Building and Safety regularly confers with the City Attorney’s Office and other City officials concerning sign permit applications of only certain parties who are or have been involved in litigation with the City. Such parties are singled out for unfavorable treatment and do not enjoy the same rights as other speakers whom the City views more favorably.” Id. at ¶ 9 (emphasis added). These allegations are purely conclusory because they fail to provide even basic “who, what, where, and why” information regarding the “years-long vendetta,” the “affiliated persons and enterprises,” the phrase “treating them differently,” the phrase “curried favor,” the “certain parties . . . who are or have been involved in litigation with the City,” the phrase “singled out for unfavorable treatment,” and the phrase “same rights as other speakers.” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 374 (11th Cir. 2011)(allegations regarding information sharing were conclusory because they did not describe the type of information shared, who shared the information, or why the claimed sharing would chill plaintiff’s First Amendment rights). Even if accepted as true, the allegations do not provide sufficient information for the Court to reasonably infer that the City is responsible for the alleged misconduct. Iqbal, 556 U.S. at 678. “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010). b. Folb’s allegations under the “First Cause of Action” are conclusory. Folb’s allegations in the “First Cause of Action” section of the First Amended Complaint attempt to somehow link the denial of Folb’s applications for sign permits Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 20 of 27 Page ID #:922 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 at the 3500 Overland Boulevard site to Paramount’s supergraphic signs at the Sunset Boulevard sites:  Plaintiff is further informed and believes that the refusal of the City to process and grant Plaintiff’s applications for permits for temporary off-site signs may have been a result of the City’s belief that Plaintiff was connected in some manner with the display of supergraphic signs at buildings located at 6464 and 6565 Sunset Boulevard and litigation concerning those properties, instead of upon a fair consideration of the applicable code provisions.” D.I. 52 at ¶ 17;  Plaintiff is informed and believes that the City’s actions were intended to punish it for prior speech in connection with signs that were erected by other property owners at 6464 and 6565 Sunset Boulevard. Id. These allegations lack any concrete facts or evidence, but rest entirely on unsubstantiated personal beliefs or opinions, which do not meet the plausibility standard. Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009)(“. . . bald allegation of impermissible motive on the Agent’s part, standing alone is conclusory and therefore not entitled to an assumption of truth.”) The First Amended Complaint also alleges the following: “In stark contrast to its treatment of Plaintiff’s June 2015 signage application, Plaintiff is informed and believes that the City has made special accommodations for other parties seeking signage rights, including by way of passing ordinances to favor certain parties, providing development agreements, waivers and modifications to the LAMC’s signage regulations.” D.I. 52 at ¶ 18. The above allegations fail to meet the plausibility standard in a number of ways, including failing to identify the “special accommodations” made for “other parties,” Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 21 of 27 Page ID #:923 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 failing to identify the favored “certain parties,” and failing to provide specific facts about the referenced “development agreements, waivers and modifications to the LAMC’s signage regulations” (such as dates, parties receiving this favorable treatment, etc.). Moss, 572 F.3d at 969. Because these allegations lack even a minimal amount of concrete factual support, they are mere speculation. These allegations do not support a plausible claim that raises a “reasonable expectation” that discovery will reveal admissible evidence of these allegations. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). Given the extreme and serious nature of these allegations, a reasonable plaintiff would definitely have included them in its initial complaint. As the Court noted, Folb did not include any of these allegations in the original complaint to support its as- applied claim: “does not plead any factual matter whatsoever concerning the content or validity of the application” of the City’s sign regulations. D.I. at 19. The fact that Folb completely left these highly serious allegations out of its original complaint, and the fact that Folb has now, without any explanation, included them in its First Amended Complaint, is tantamount to an admission by Folb that it has no basis for these allegations and that they are untrue. See Andrews v. Metro North Commuter R.R. Co., 882 F.2d 705, 707 (2d Cir. 1989)(a prior pleading in original complaint can be used as an admission or a prior inconsistent statement against the plaintiff). The only logical explanation for Folb’s sudden inclusion of these allegations in its current First Amended Complaint is that Folb manufactured the new allegations solely to salvage its as-applied claim. Further, even if these allegations could be proven, the First Amended Complaint fails to explain how they would support Folb’s as-applied challenge to the off-site sign ban. Because these allegations fail to meet the federal pleading requirements, they should not be considered by the Court in assessing Folb’s as-applied challenge. Folb’s as-applied challenge is discussed in Section B 3, below. Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 22 of 27 Page ID #:924 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 3. Folb’s as-applied challenge to the City’s off-site sign ban fails on the merits. As discussed above in Section B 2, the conclusory and speculative allegations in the First Amended Complaint must be disregarded by the Court, which leaves Folb’s as-applied challenge consisting solely of allegations that the ban is “unconstitutional as-applied” to it in light of the “on-site and off-site commercial signs . . . allowed by the City on or around the property” including “a large billboard near the property, poll [sic] signs on street lamps, signs on the sides of neighboring buildings, and signs on storefronts,” which cause the ban to violate “the test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343 (1980).” D.I. 52 at ¶ 19. Even these allegations fail the federal plausibility pleading standards as they are conclusory and fail to provide even minimal information about the alleged “on-site and off-site commercial signs,” such as their addresses, how many of these alleged signs there are, how they are in any way similar to Folb’s proposed signs, and other concrete descriptions. As such, the First Amended Complaint fails to provide sufficient notice to the City as to why the existence of these alleged signs in the vicinity of Folb’s proposed signs supports Folb’s as-applied challenge. See Center for Bio-Ethical Reform, Inc., 648 F.3d at 374. Nevertheless, Folb’s as-applied challenge to the City’s off-site sign ban fails on the merits and therefore fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). This type of as-applied challenge to the City’s sign ban based on the existence of other off-site signs has already been soundly and repeatedly rejected by both the Ninth Circuit Court of Appeals and the California Court of Appeals. The most recent of these decisions - Lamar Central Outdoor, LLC v. City of Los Angeles, 245 Cal. App. 4th 610 (Cal. Ct. App. 2016) - is particularly instructive because it involved a claim arising from a number of exceptions to the off-site sign ban similar to, but much more extensive than those alleged, without any concrete detail, by Folb in the First Amended Complaint. Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 23 of 27 Page ID #:925 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 In Lamar, a sign company argued3 that the City’s off-site sign ban could not pass muster under the intermediate scrutiny test devised in Central Hudson Gas & Elec. v. Public Serv. Comm’n, 447 U.S. 557 (1980) for restrictions on commercial speech because there were so many exemptions to the ban, including (1) a 2006 settlement agreement allowing the digitization of up to 840 billboards; (2) a 2001 agreement allowing off-site signs on bus shelters and other street furniture on 1,697 bus shelters and 6,161 benches, with a total of 166,366 square feet of space available for signage; (3) 7,875 street banners with a total of 189,000 square feet of space available for signage; (4) 364 municipal buses with 17,246 square feet of available sign space; and (5) 147 other off-site signs whose lawful status was controverted. Lamar, 245 Cal. App. 4th at 625. The Lamar trial court had invalidated the sign ban after finding that it did not directly advance the City's interests because “there were too many exceptions to the ban that also contribute to traffic hazards and visual blight.” Id. at 630. The trial court had observed that the city “has permitted approximately 460,000 square feet worth of off-site signs to be erected since 2001,” and the city failed to demonstrate that those 15,000 offsite signs, “in addition to the on-site, noncommercial, and exempted off-site signs that are posted throughout Los Angeles, have not contributed to the City's traffic hazards and visual blight.” Id. However, the Court of Appeal in Lamar rejected the trial court’s approach after noting that the United States Supreme Court’s decision in “Metromedia II (the seminal sign case decided by the high court in Metromedia v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882 (1981)), and the Ninth Circuit cases that have repeatedly found the city’s sign ban constitutional, reject the notion that the sign ban does not directly 3 In Lamar, the sign company argued that the City’s off-site sign ban was content-based under the free speech clause of the California Constitution and therefore subject to a strict scrutiny analysis. See Lamar, 245 Cal. App. 4th at 624. As a backup argument, the sign company argued that the ban could not pass the intermediate scrutiny Central Hudson test, which is relevant here to the discussion of Folb’s as-applied challenge. Id. at 622. Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 24 of 27 Page ID #:926 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 advance the city's interests, and so do we.” Id. at 635. The Court of Appeal then quoted from Metromedia II as follows: “whether onsite advertising is permitted or not, the prohibition of off-site advertising is directly related to the stated objectives of traffic safety and esthetics.” Id. at 630 (citing Metromedia II, supra, 453 U.S. at 511, 101 S. Ct. at 2894; see id. (conclusion that the off-site sign ban directly advanced San Diego's stated objectives “is not altered by the fact that the ordinance is underinclusive because it permits onsite advertising”)). The Court of Appeal then analogized the facts before it - which involved numerous exceptions to the ban - to those in the Ninth Circuit’s decision in Metro Lights, LLC v. City of Los Angeles, 551 F.3d 898 (2009). In Metro Lights, the Ninth Circuit found that “[a] regulation is not underinclusive simply because it has exceptions. Here, more than 40 percent of the 460,000 square feet of excepted off-site signs (half of the 15,000 signs) cited by the trial court consist of street banners advertising community, charitable, and nonprofit events (7,875 banners, at 189,000 square feet). Another 36 percent of the square footage consists of street furniture signs at city transit stops (7,858 signs, or 166,366 square feet).” Lamar, 245 Cal. App. 4th at 631. As the Ninth Circuit explained in Metro Lights, the street furniture exception “does not weaken the direct link between the City's objectives and its general prohibition of off-site advertising.” Id. at 631 (citing Metro Lights, 551 F.3d at 910). The Ninth Circuit concluded that, with or without the street furniture exception, the sign ban would decrease visual clutter, and that “uncontrolled and incoherent proliferation [of off-site advertising by numerous and disparate private parties] is sufficient for Los Angeles to disfavor offsite signs away from transit stops.” Id. Metromedia II's “emphasis on deference to legislative judgment … resounds quite clearly in this case,” the Ninth Circuit stated, valuing one kind of commercial speech (“controlled offsite advertising on public transit facilities”) more than another (“uncontrolled offsite advertising spread willy-nilly about the streets”). Id. The Ninth Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 25 of 27 Page ID #:927 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Circuit “declined to overrule such a legislative judgment,” concluding: “Ultimately, whether one considers the Sign Ordinance from the perspective of the City's interest in traffic safety or its interest in aesthetics, the [street furniture exception] does not work at inexorable cross-purposes to it. Although the [street furniture exception] permits some advertising, a regime that combines the Sign Ordinance and the [street furniture exception] still arrests the uncontrolled proliferation of signage . . . .” Id. The Court of Appeal in Lamar found no reason to disagree with the Metro Lights analysis, and concluded that the same principles necessarily applied to the City’s exceptions before it - those for street banners advertising community, charitable and nonprofit events, as well as the advertising on the City's 364 buses. Id. As the Court of Appeal in Lamar explained, there was no basis to conclude that any of the exceptions “work[s] at inexorable cross-purposes” to the sign ban. Id. The Court of Appeal in Lamar also addressed the contention that the sign ban was more extensive than necessary to serve the City’s interests, violating the fourth prong of the Central Hudson test. Id. at 632. The plaintiff cited the trial court's statement that plaintiff’s permit applications “would be denied under the Ban's on-site- off-site distinction even if it wanted to display offsite commercial messages only 1% of the time,” so that “the Ban stifles otherwise protected speech [i.e., noncommercial speech] in the guise of promoting traffic safety and visual esthetics.” Id. The Court of Appeal rejected that rationale as “entirely speculative and unsupported by pertinent legal authority.” Id. Under the sign ban, a noncommercial sign is allowed wherever a commercial sign is allowed. Id. at 632-633. The court observed that what is required is not the “ ‘least restrictive means,’” but rather a reasonable fit between the legislature's ends and the means chosen to accomplish those ends. Id. at 633. The Court of Appeal therefore upheld the off-site ban in Lamar. See Id. In addition to Metro Lights, the Ninth Circuit has upheld the off-site ban, despite exceptions to it, in two other published decisions: World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676 (9th Cir. 2010)(exception from off-site ban for sign Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 26 of 27 Page ID #:928 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 districts); and Vanguard Outdoor, LLC v. City of Los Angeles, 648 F.3d 737 (9th Cir. 2011)(various exceptions from off-site ban). In the present case, Folb alleges in the First Amended Complaint that the off-site sign ban is unconstitutional as applied to Folb because “[t]here are numerous types of on-site and off-site commercial signs (as well as other signs) allowed by the City on or around the property.” D.I. 52 at ¶ 19. Folb then gives examples of these signs: “. . . a large billboard near the property, poll [sic] signs on street lamps, signs on the sides of neighboring buildings, and signs on storefronts.” Id. These alleged exemptions to the ban are similar to, but much less extensive and concretely described, than those addressed in the aforementioned published decisions. Thus, Folb’s as-applied challenge to the City’s off-site sign ban fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Because Folb’s as-applied challenge to the City’s off-site sign ban treads no new ground, it should be dismissed without leave to amend. See Blantz v. California Department of Corrections and Rehabilitation, 727 F.3d 917, 927 (9th Cir. 2013)(Ninth Circuit upheld district court’s dismissal of action without leave to amend because the new allegations envisioned by plaintiff “would merely be additional conclusory allegations of the sort that are insufficient under Iqbal and Twombly.”). V. CONCLUSION For the foregoing reasons, the City respectfully requests that the Court grant its Motion to Dismiss the First Amended Complaint. Dated: October 21, 2016 MICHAEL N. FEUER, City Attorney TERRY KAUFMANN MACIAS, Asst. City Attorney KENNETH T. FONG, Deputy City Attorney YONGDAN LI, Deputy City Attorney By /S/ KENNETH T. FONG KENNETH T. FONG Deputy City Attorney Attorneys for Defendant CITY OF LOS ANGELES Case 2:15-cv-06153-FMO-PJW Document 53 Filed 10/21/16 Page 27 of 27 Page ID #:929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MICHAEL N. FEUER, City Attorney (SBN 111529) TERRY KAUFMANN MACIAS, Assistant City Attorney (SBN 137182) KENNETH T. FONG, Deputy City Attorney (SBN 140609) Email: kenneth.fong@lacity.org YONGDAN LI, Deputy City Attorney (SBN 265281) Email: yongdan.li@lacity.org 200 North Main Street City Hall East Room 701 Los Angeles, California 90012-4131 Telephone: (213) 978-8202 Facsimile: (213) 978-8090 Attorneys for Defendant, CITY OF LOS ANGELES UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF LOS ANGELES THE FOLB PARTNERSHIP, a California partnership and PARAMOUNT CONTRACTORS AND DEVELOPERS, INC., a California corporation, Plaintiffs, v. CITY OF LOS ANGELES, a California municipal corporation and DOES 1 through 10, inclusive, Defendants. Case No. CV-15-06153 FMO (PJW) Hon. Fernando Olguin DECLARATION OF KENNETH T. FONG IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES’ MOTION TO DISMISS FIRST AMENDED COMPLAINT (FRCP Rule 12(b)(6)) [Filed concurrently with City of Los Angeles’ Notice of Motion to Dismiss Complaint First Amended Complaint; Motion to Dismiss First Amended Complaint; Request for Judicial Notice; [Proposed] Order] Hearing: Date: December 8, 2016 Time: 10:00 a.m. Department: 22 Case 2:15-cv-06153-FMO-PJW Document 53-1 Filed 10/21/16 Page 1 of 7 Page ID #:930 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF KENNETH T. FONG I, Kenneth T. Fong, declare that I have personal knowledge of the following First Amended Complaints, and if called as a witness could, and would, testify as follows: 1. I am an attorney duly licensed in the State of California, admitted to the United States District Court for the Central District of California, and counsel of record for the City of Los Angeles (“City”) in the above-referenced action. 2. On Tuesday, October 4, 2016, I caused to be sent via email and by First Class U.S. mail a letter to Will Brody who represents Plaintiff The Folb Partnership in this litigation. That letter informed Mr. Brody of the City’s plans to file a Motion to Dismiss Plaintiff’s First Amended Complaint, described the City’s basis for the motion in some detail, and requested that Mr. Brody participate with the City’s attorneys in a meet and confer regarding the City’s motion on October 10, 2016, or some other mutually convenient date. Later that same day, Mr. Brody sent an email to the undersigned asking him to call Mr. Brody. The undersigned did so and we agreed to hold the meet and confer on Tuesday, October 11, 2016, at 4:00 pm. A copy of the October 4th letter is attached hereto as Exhibit “A.” 3. On Tuesday, October 11, 2016, my colleague and I, Deputy City Attorney Yongdan Li, conducted a telephonic meet and confer with Will Brody, which began at 4:30 pm and lasted until approximately 5:00 pm. We discussed the basis for the City’s motion set forth in the October 4th letter. 4. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed this 21st day of October, 2016, at Los Angeles, California. __/s/ Kenneth T. Fong_________ Kenneth T. Fong Deputy City Attorney M:\Real Prop_Env_Land Use\Land Use\Kenneth Fong\Litigation KTF Lead Attorney\Folb Partnership v City of Los Angeles\Litigation\Motion to Dismiss FAC 3 (Fong's Declaration In Support).doc Case 2:15-cv-06153-FMO-PJW Document 53-1 Filed 10/21/16 Page 2 of 7 Page ID #:931 EXHIBIT A Case 2:15-cv-06153-FMO-PJW Document 53-1 Filed 10/21/16 Page 3 of 7 Page ID #:932 MICHAEL N. FEUER CI'lY ATfORNEY October 4,2016 VIA U.S. MAIL AND E-MAIL Mr. William M. Brody Loeb & Loeb LLP 10100 Santa Monica Boulevard, Suite 2200 Los Angeles, California 90067 Re: The Folb Partnership and Paramount Contractors v. City ofLos Angeles Case No. CV-15-06153 FMO (PJW) w;tL- Dear Mr. Brody: As you know, the Court's Order Re: Defendant's Motion to Dismiss filed 09/14/16 (Court's Order) dismissed with prejudice all of Plaintiff Paramount Contractors and Developers, Inc.'s facial and as-applied claims regarding its applications for pennits for signs at 6464 and 6565 Sunset Boulevard. (DJ. 51 at 17, 20.) The Court Order also dismissed with prejudice The Folb Partnership's (Folb) facial challenge to the City's sign regulations, including the City's off- site sign ban contained in Los Angeles Municipal Code section 14.4.4 B 11. (Id. at 18,20.) Finally, the Court Order dismissed without prejudice Folb's "as-applied challenge regarding its 2015 application for a permit to erect and maintain temporary signs displaying off-site messages at Overland," and granted leave to amend that claim. (Id. at 20.) The Folb Partnership ("Folb") filed its First Amended Complaint on September 30,2016. The City intends to file a motion to dismiss Folb's First Amended Complaint ("FAC"; DJ. 52) no later than October 21,2016, pursuant to the Court's Order. (Id. at 21; Fed. R. Civ. P. 12). Pursuant to the Court's Order, the City would like to meet and confer with you regarding the City's planned motion to dismiss on October 10,2016, at 10:00 a.m., or at another mutually agreeable time. (DJ. 51 at 21.) City Hall East 200 N. Main Street Room 800 Los Angeles, CA 90012 (213) 978-8100 Fax (213) 978-8312 Case 2:15-cv-06153-FMO-PJW Document 53-1 Filed 10/21/16 Page 4 of 7 Page ID #:933 Mr. William M. Brody Loeb & Loeb LLP October 4,2016 Page 2 The grounds for City's motion to dismiss include the following: A. First Amended Complaint Adds New Facial Claim In Violation of Court Order The FAC adds a new facial claim, which violates the Court's Order that "Folb's facial challenge is dismissed with prejudice" and expressly instructs that "Folb may not add any new claims or parties to the First Amended Complaint." (DJ. 51 at 20, lines 18-23). The new facial claim challenges the applicability of the City's off-site sign ban (L.A.M.C. § 14.4.4(B)(11» to ''temporary signs" based on the argument that LAMC section 14.4.3 D lists provisions that apply to temporary signs, and that list does not include Section 14.4.4(B)(11). (DJ. 52 at ~~ 10-14.) This argument is a new facial claim because it is based on the face of a statute and applies to all temporary signs, not just Folb's. This new argument thus violates the Court's Order. The argument that L.A.M.C. § 14.4.4(B)(11) does not apply to "temporary signs" is also foreclosed by statutory construction principles. The broad scope of the City's sign regulations is set forth by L.A.M.C § 14.4.3 (A), which requires that "[a]ll exterior signs and sign support structures shall conform to the requirements ofthis article and all other applicable provisions of this Code." (L.A.M.e. §14.4.3 (A) (emphasis added).) The City's off-site sign ban codified at L.A.M.C. § 14.4.4 B 11 is among the "requirements ofthis article" (where "article" refers to Article 4.4 - the Citywide sign regulations). Because temporary signs are "exterior signs," the off-site ban applies to them. Moreover, L.A.M.C § 14.4.3 (D) does not state that it is an exhaustive list of all sign regulations that apply to temporary signs, and thus does not prevent the off-site sign ban in L.A.M.C. § 14.4.4(B)(11) from applying to temporary signs. In fact, a companion statute, L.A.M.C. § 14.4.3 (C), sets forth a similar list of sign regulations that applies to "Off-Site Signs." This list also does not include the City's off-site sign ban. Under the logic of the argument in the FAC that L.A.M.C. § 14.4.4(B)(11) does not apply to ''temporary signs," the off- site sign ban would thus not apply to off-site signs either, which of course makes no sense-your client admits in the FAC that "LAMC section 14.4.4(B)(11) bans new 'off-site' signs." (DJ.52 at ~ 11.) Therefore, the argument that L.A.M.C. § 14.4.4(B)(11) does not apply to ''temporary signs" in the First Amended Complaint is meritless. Furthermore, the FAC contains a footnote alleging that "the LAMC fails to provide a definition of these terms ["a political, ideological or other noncommercial message"] sufficient to allow Plaintiff to display its temporary signs without fear of fmes and possible criminal prosecution. (D.!. 52 at 3, n. 1). The Ninth Circuit has already upheld the City's ability to distinguish between commercial and noncommercial signage in an enforcement context. Charles v. City ofLos Angeles, 697 F.3d 1146 (9th Cir. 2012) (Ninth Circuit upheld the City's authority to determine that a sign displaying "the logo for the television show 'E!News,' and photographs of the show's hosts, Ryan Seacrest and Giuliana Rancic" was commercial rather than noncommercial speech). Case 2:15-cv-06153-FMO-PJW Document 53-1 Filed 10/21/16 Page 5 of 7 Page ID #:934 Mr. William M. Brody Loeb & Loeb LLP October 4,2016 Page 3 B. Folb's As-Applied Challenge Is Not Ripe. Your client alleges in the FAC that "[t]he City refused to process or approve Plaintiffs application and, in fact, failed to even fully consider it." (D.!. 52 at ~ 8.) This means that Folb had a duty to file an administrative appeal to the Board ofBuilding and Safety Commissioners in order to obtain a sufficiently "defined and concrete" decision ready for adjudication. Digital Properties, Inc v. City ofPlantation, 121 F.3d 586 (11 th Cir. 1997) (holding that First Amendment lawsuit for denial ofpennit for adult bookstore was not ripe because planning staffs informal rejection of proposed use and refusal to accept the application was not a sufficiently definite and concrete administrative decision). C. The First Amended Complaint Contains Speculations Which Fail to Satisfy Pleading Standards· The FAC is replete with legal conclusions that fail to satisfy the "plausibility" standard of pleading set forth in Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), including the following: 1. "City has carried on a years-long vendetta against Plaintiff and its affiliated persons and enterprises, treating them differently than other persons and companies in the same business who curried favor with the City." (D.!. 52 at 2, lines 26-28.) 2. "... alleges that the City's Department of Building and Safety regularly confers with the City Attorney's Office and other City officials concerning sign pennit applications of only certain parties who are or have been involved in litigation with the City. Such parties are singled out for unfavorable treatment and do not enjoy the same rights as other speakers whom the City views more favorably." (ld. at 3, lines 3-8.) 3. "... the refusal of the City to process and grant Plaintiffs applications for permits for temporary off-site signs may have been a result of the City's belief that Plaintiffwas connected in some manner with the display of supergraphic signs at buildings located at 6464 and 6565 Sunset Boulevard and litigation concerning those properties, instead of upon a fair consideration of the applicable code provisions." (Id. at 5, lines 6-11.) 4. ''the City's actions were intended to punish it for prior speech in connection with signs that were erected by other property owners at 6464 and 6565 Sunset Boulevard." (Id. at 5, lines13-15.) All of these allegations are mere speculation that do not support a "plausible" claim supported by sufficient facts that raise a "reasonable expectation" that discovery will reveal admissible evidence ofthese allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 1 The City is also contemplating moving for a more definite statement under Fed. R. Civ. P. 12(e) based on the vague and ambiguous statements in the FAC in conjunction with a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Case 2:15-cv-06153-FMO-PJW Document 53-1 Filed 10/21/16 Page 6 of 7 Page ID #:935 Mr. William M. Brody Loeb & Loeb LLP October 4,2016 Page 4 Moreover, the FAC fails to explain how these allegations, even ifproven, would support Folb's as- applied challenge to the off-site sign ban. D. The Ban Is Not Unconstitutional As-Applied The FAC alleges that the ban is "unconstitutional as-applied" to Folb in light of the "on- site and off-site commercial signs ... allowed by the City on or around the property" including "a large billboard near the property, poll [sic] signs on street lamps, signs on the sides of neighboring buildings, and signs on storefronts," which cause the ban to violate "the test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). (D.l. 52 at ~ 19.) The Ninth Circuit has previously upheld the City's oft:'site sign ban after applying the Central Hudson test and, notably, the third prong of that test that requires that the regulation at issue "directly advance" the City's purposes behind the regulation. The Ninth Circuit explained that the street furniture exception (which allowed thousands ofoff-site signs on street furniture in spite of the off-site sign ban) "does not weaken the direct link: between the City's objectives and its general prohibition ofoffsite advertising." Metro Lights, Inc. v. City ofLos Angeles, 551 F.3d 898, 910 (9th Cir. 2009). Similarly, the Ninth Circuit upheld the off-site ban despite exceptions to the ban, including for billboards in sign districts. World Wide Rush, LLC v. City ofLos Angeles, 606 F.3d 676 (9th Cir. 2010). Finally, both the Ninth Circuit and the California Court of Appeals have upheld the ban under the free speech clause of the California Constitution using th~ Central Hudson test, which is also used for First Amendment challenges to the ban. Vanguard Outdoor, LLC v. City ofLos Angeles, 648 F.3d 737 (9th Cir. 2011); Lamar Central Outdoor LLC v. City ofLos Angeles, 245 Cal. App. 4th 610 (2016). The Lamar court upheld the ban even in the face of 147 off-site signs whose legality was uncertain. Id. at 632. Please consider the foregoing, and let us know whether you can meet and confer regarding the City's motion to dismiss your client's First Amended Complaint on October 10, 2016, at 10:00 am, or at another mutually agreeable time. We are also available any time after 10:30 am on Thursday, October 6th, or Friday, October 7th• Sincerely, 4/~~: KENNETH T. FONG Deputy City Attorney KTF:gI cc: Doug Mirell Tim McOsker Case 2:15-cv-06153-FMO-PJW Document 53-1 Filed 10/21/16 Page 7 of 7 Page ID #:936