AUDREY B. COLLINS, Chief Judge.
Pending before the Court is Defendant City of Los Angeles's (the "City's") Motion to Dismiss Complaint and Request for Injunctive Relief and Motion for a More Definite Statement, filed on November 11, 2010. (Docket No. 21.) Plaintiffs Wayne Charles and Fort Self Storage, Inc. ("Plaintiffs") opposed on November 15, 2010 and the City replied on November 22, 2010. This matter is set for hearing on Monday, December 6, 2010 at 10:00 a.m., but the Court finds it appropriate for resolution without oral argument. Fed. R.Civ.P. 78; Local Rule 7-15. The Court also VACATES the Scheduling Conference set for that day. For the reasons below,
This is yet another case in the saga involving the City's attempts to regulate the proliferation of commercial billboards in Los Angeles. This case, however, raises only narrow as-applied claims for declaratory and injunctive relief and damages based on the City's classification of Plaintiff's proposed signs as commercial, which are prohibited by the City's ordinance regulating signs throughout the City (the "Sign Ordinance"). (Compl. ¶ 26 ("The only real issue in dispute is whether the content of the initial proposed sign, and other proposed signs, is commercial, and thus prohibited by the Sign Regulations, or noncommercial, and thus permitted.").) In denying a motion for a preliminary injunction, the Court already concluded on a nearly identical record that the City properly classified Plaintiffs' proposed sign as commercial, which barred Plaintiffs' claims. (Docket No. 25.) The Court reaches the same conclusion here.
Article 4.4 of the Los Angeles Municipal Code ("LAMC"), which contains the City's Sign Ordinance, does not prohibit signs bearing "ideological, political, or other noncommercial message[s]" if they are otherwise permitted by that Article. LAMC § 14.4.4(A). It does require a permit for any off-site commercial sign, which 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 on the premises where the sign is located." Id. § 14.4.2. Plaintiffs' proposed sign would be an off-site "temporary" sign under the City's Sign Ordinance, defined as "[a]ny sign that is to be maintained for a limited duration, not to exceed 30 days, including paper signs and other signs that are not permanently affixed to the ground or building." Id. § 14.4.2. Temporary signs are allowed under the following circumstances:
Id. § 14.4.16.
Two other provisions of the Sign Ordinance prohibit certain signs located near freeways:
Id. §§ 14.4.5, 14.4.6. The Sign Ordinance specifically provides that temporary signs
Plaintiff Wayne Charles is in the business of leasing wall space for posting and operating signs bearing "noncommercial messages." (Compl. ¶ 1.) Earlier this summer, he traveled to Los Angeles to investigate opportunities to post signs; in doing so, he reviewed the Sign Ordinance and concluded he could post temporary signs for thirty days. (Compl. ¶ 6.) He eventually found a building at 1651 South Central Avenue, leased by Plaintiff Fort Self Storage, Inc. ("Fort"). (Compl. ¶ 8.) Wayne entered an agreement with Fort to lease wall space to post the billboard at issue here. (Compl. ¶ 9.)
Plaintiffs allege that the signs to be posted "will bear content related to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings and other works of art." (Compl. ¶ 11.) Plaintiffs attached to the complaint photographs of the content of only their first proposed sign: an advertisement bearing the logo for the television show "E! News" on the Entertainment Network and images of the show's two hosts, Ryan Seacrest and Giuliana Rancic. (Compl. ¶ 14, Ex. A.) Because Plaintiffs allege that this sign is noncommercial, Plaintiffs did not apply for a permit to post this sign, but they have not posted it or any other sign "based on [] knowledge that the City has recently jailed and fined individuals who it believes have violated the Sign Regulations," and Plaintiffs fear that the City would enforce the Sign Ordinance against it. (Compl. ¶ 13.)
Plaintiffs approached the City about posting this sign, claiming it to be noncommercial, and the City eventually sent Plaintiffs a letter indicating that the sign was commercial, would violate the Sign Ordinance, and warned Plaintiffs that criminal fines and other penalties could accrue from posting non-permitted commercial signs. (Compl. ¶ 23; Compl., Ex. B.) The letter referred to the Sign Ordinance's permitting requirements for off-site, supergraphic, and temporary signs, but did not refer specifically to the Traffic Hazard or Freeway Exposure provisions. (Compl., Ex. B.) The letter did note that the "subject signs may additionally violate other provisions of state or local law." (Id.)
Plaintiffs filed the instant complaint on September 29, 2010, seeking a declaratory judgment that its proposed signs are all noncommercial and exempt from the City's permitting and other restrictions on commercial billboards (Compl. ¶¶ 25-28) and seeking an injunction preventing the City from enforcing the Sign Ordinance against Plaintiffs' allegedly noncommercial signs (Compl. ¶¶ 35-39). Plaintiff also allege an equal protection claim that, "by prohibiting Plaintiffs from posting their proposed signs, but allowing other favored entities and organizations to post similar signs bearing similar content, the City has violated Plaintiffs' right to equal protection." (Compl. ¶ 32.) Plaintiffs further seek damages pursuant to 42 U.S.C. § 1983. (Compl. ¶ 34.)
Plaintiffs moved for a temporary restraining order on September 29, 2010, which was denied two days later. (Docket No. 7.) Plaintiffs then filed a motion for a preliminary injunction, which was denied on November 25, 2010. (Docket No. 25.) Plaintiffs have appealed that denial. (Docket No. 27.) The City has now moved to dismiss all of Plaintiffs' claims on grounds similar to those raised in its opposition to Plaintiffs' motion for a preliminary injunction. Particularly, the City argues
A complaint survives a motion to dismiss under Rule 12(b)(6) if it contains a "short and plain statement of the claim showing that the pleader is entitled to relief," which does not require "detailed factual allegations," but it "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A claim must be "plausible on its face," which means that the Court can "draw the reasonable inference that the defendant is liable for the mis-conduct alleged." Id.; see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In other words, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires 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, 127 S.Ct. 1955 (internal quotations and alterations omitted). Allegations of fact are taken as true and construed in the light most favorable to the nonmoving party. See Newdow v. Lefevre, 598 F.3d 638, 642 (9th Cir.2010).
In analyzing the sufficiency of the complaint, the Court must first look at the requirements of the causes of action alleged. See Iqbal, 129 S.Ct. at 1947. The Court may then identify and disregard any legal conclusions, which are not subject to the requirement that the Court must accept as true all of the allegations contained in the complaint. Id. at 1949. The Court must then decide whether well-pleaded factual allegations, when assumed true, "plausibly give rise to an entitlement to relief." Id. at 1950. In doing so, the Court may not consider material beyond the pleadings, but may consider judicially noticeable documents, documents attached to the complaint, or documents to which the complaint refers extensively or which form the basis of the plaintiff's claims in the complaint. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003).
A defendant may compel a more definite statement under Rule 12(e) when the complaint "is so vague or ambiguous that the party cannot reasonably prepare a response." Rule 12(e) relief is warranted where "the complaint is so indefinite that the defendants cannot ascertain the nature of the claims being asserted and `literally cannot frame a responsive pleading.'" Hubbs v. County of San Bernardino, 538 F.Supp.2d 1254, 1262 (C.D.Cal.2008).
The City has moved to dismiss Plaintiffs' claims for lack of jurisdiction pursuant to Rule 12(b)(6), but the Court must construe it as a motion brought pursuant to Rule 12(b)(1). See Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007) ("[W]hen a motion to dismiss attacks `the substance of the complaint's jurisdictional allegations,' we treat it as brought under Rule 12(b)(1), even if it was `improperly identified by the moving party as brought under Rule 12(b)(6).'"). In adjudicating the motion, then, "the court may expand its review and `rely on affidavits or any other evidence properly before the court.'" Id. at 980.
This distinction is significant in this case because the City has submitted a declaration from the Principal Inspector
The City raises several arguments that it believes undermine jurisdiction in this case: (1) Plaintiffs have failed to demonstrate injury-in-fact for standing purposes because they did not allege an agreement between themselves and any sign customer; (2) Plaintiffs' injury would not be redressable because independent restrictions in the Sign Ordinance would preclude their signs, regardless of whether they are commercial or noncommercial; and (2) Plaintiffs' claims are not ripe because they have not erected any proposed signs and the City has not taken any enforcement action against them.
"Standing" is an essential element to the case-or-controversy requirement of Article III of the U.S. Constitution. Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir.2010). The "`irreducible constitutional minimum'" of standing requires the party asserting jurisdiction to establish three elements: "(1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) causation; and (3) a likelihood that a favorable decision will redress the injury." Id.
The City argues that Plaintiffs have not alleged a "concrete and particularized" injury for three reasons: (1) Plaintiffs never applied for and obtained a denial of a permit; (2) Plaintiffs were never subject to an order to comply for having installed an illegal sign; and (3) Plaintiffs have not alleged they lost any profit from the "inability to satisfy an existing business contract." (Mot. 7.) The basic premise of the City's arguments is that the proposed E! News billboard is the message from another entity, not Plaintiffs, so Plaintiffs have not been personally injured by the City's Sign Ordinance. However, Plaintiffs allege that Plaintiff Charles is in the business of leasing sign space to post signs, that he intends to post signs on Plaintiff Fort's property, and the City has threatened enforcement actions if Plaintiffs post their proposed E! News sign. The reasonable inference from these allegations is that Plaintiffs will be personally injured by posting signs they believe they have a right to post. That is sufficient to satisfy the injury-in-fact requirement for standing.
The City argues that the third standing requirement is missing here because, even if Plaintiffs' signs are noncommercial, they would be barred by independent, unchallenged provisions of the Sign Ordinance. See Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 892-94 (9th Cir.2007). In Get Outdoors, billboard companies sought sign permits that were denied because they violated a ban on off-site signs; the city later argued that they would have been independently barred by
Relying on Get Outdoors, the City claims that, even if the Court were to find Plaintiffs' E! News sign to be noncommercial, it could not be erected without violating the Hazard to Traffic and Freeway Exposure restrictions in the Sign Ordinance. LAMC §§ 14.4.5, 14.4.6. However, the Court is not convinced that Plaintiffs' sign would be barred by these provisions if it were considered noncommercial.
First, the City has not demonstrated that the Hazard to Traffic provision would apply to Plaintiffs' sign if it were deemed noncommercial and exempt from permitting requirements. While the language in subsection (A) suggests such a conclusion,
The City argues that subsection (B) does leave open the possibility that a noncommercial sign could be a traffic hazard even without obtaining a permit because that section requires that all "other permit applications and any signs that are determined by the Department of Building and Safety to have a potential for hazard" be referred to the Department of Building and Safety. § 14.4.5(B)(2) (emphasis added). But the prefatory statement in subsection (B) ("The Department of Building and Safety shall refer the following to the Department of Transportation for hazard evaluation and determination prior to the issuance of a building permit ...") and the directive in subsection (C) ("The Department of Transportation shall return to the Department of Building and Safety each application so referred to it together with a statement of its determination.") still contemplate the issuance of a permit after referral and the City has offered no evidence to suggest that noncommercial signs would be subject to this provision. The Court is not convinced that section 14.4.5(B) and (C) would independently bar Plaintiffs' sign if it were deemed noncommercial.
The application of the Freeway Exposure restriction in section 14.4.6 presents a closer question. It bans all signs within 2,000 feet of a freeway, unless the Department of Building and Safety determines that a sign will not be "viewed primarily from a main traveled roadway of a freeway
Claims are constitutionally ripe only when they present injuries that are "`definite and concrete, not hypothetical or abstract,'" which can include pre-enforcement injuries, so long as the plaintiff has shown a "genuine threat of imminent prosecution.'" Wolfson, 616 F.3d at 1058 (emphasis in original). A claimed threat of prosecution is "genuine" when: (1) the plaintiff has articulated a concrete plan to violate the law at issue; (2) the prosecuting authorities have communicated a specific warning or threat to initiate proceedings;
Plaintiffs' claims regarding the E! News billboard are ripe even though they have not erected signs yet and have not been forced to take them down. Cf. Nat'l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339-40 (11th Cir.2005) (finding First Amendment challenge to billboard law unripe because plaintiff "never properly pursued its claim through the administrative process that the City's zoning ordinance made available to them" and never obtained a denial of a permit application). Plaintiffs presented to the City the E! News billboard and claimed it was exempt from the City's permitting requirement because it was noncommercial. The City disagreed with Plaintiffs' assessment, deemed the billboard commercial, and threatened criminal and civil sanctions if Plaintiffs were to erect the billboard without a permit. That more than satisfies the first two requirements outlined in Wolfson. The third criterion is also satisfied: the Court is acutely aware of the City's efforts to enforce the sign ordinance against other companies, given the many lawsuits pending before this Court. Thus, there is little doubt that Plaintiffs' challenge to the application of the Sign Ordinance to the E! News billboard is ripe for review.
Plaintiffs further suggest, however, that they would like to erect unidentified signs that would contain "content related to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings and other works of art." (Compl. ¶ 11.) While Plaintiffs' claims related to the proposed E! News sign are ripe, their claims are not ripe as to other signs, whose content has only been vaguely identified and which may or may not be subject to future actions based upon the nature of their content. See Wolfson, 616 F.3d at 1060 (finding ripeness exists where "the issues raised are primarily legal, do not require further factual development, and the challenged action is final."); see also id. at 1064 (explaining that a claim is not ripe "`if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.'"). Further, an opinion on the content of any sign beyond the one sign whose content has been identified would be an impermissible advisory opinion. See Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). As a result, the allegations directed at future, unidentified signs are not ripe and must be dismissed.
The Sign Ordinance defines an "off-site" commercial sign 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 on the premises where the sign is located."
As a general matter, the City may constitutionally distinguish between commercial and noncommercial billboards. See Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 610, 613 (9th Cir.1993); see also Maldonado v. Morales, 556 F.3d 1037, 1045-46 (9th Cir.2009). In order to apply that distinction, the City may also constitutionally vest officials with the authority to determine when a sign is commercial, since that neither vests an official with unfettered discretion nor creates an unconstitutionally vague permitting scheme. See Outdoor Sys., 997 F.2d at 613.; Nat'l Adver. Co. v. City & Cnty. of Denver, 912 F.2d 405, 410 (10th Cir.1990); Major Media of the Se., Inc. v. City of Raleigh, 792 F.2d 1269, 1272-73 (4th Cir.1986). As the Ninth Circuit explained in Outdoor Systems:
997 F.2d at 613 (internal citations omitted).
The Supreme Court has identified three characteristics that, in combination, indicate speech is commercial: (1) its advertising format; (2) its reference to a specific product; and (3) an underlying economic motive of the speaker. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 67, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983). However, the Court in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 422-23, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), seemed to suggest a narrower definition of commercial speech as speech that, at its core, "propos[es] a commercial transaction." The Ninth Circuit has variously followed Discovery Network
Plaintiffs cite a series of state and federal cases to argue that advertising for noncommercial speech is itself noncommercial speech subject to full First Amendment protection.
Unlike these cases, the proposed E! News billboard contains no noncommercial content, such that the advertising could be considered merely an "adjunct" to the underlying noncommercial speech. See Guglielmi, 25 Cal.3d at 872-73, 160 Cal.Rptr. 352, 603 P.2d 454. In this respect, the Court finds the decision in Rezec instructive. In that case, the plaintiffs sued a movie studio under state law for the false portrayal in advertising of a fictitious critic giving favorable reviews of several movies. 116 Cal.App.4th at 138, 10 Cal.Rptr.3d 333. Invoking many of the same cases Plaintiffs cite here, the studio moved to strike the complaint on the ground that the advertisements at issue was noncommercial speech because they related to movies, which were considered core noncommercial speech not properly subject to the tort suit. Id. at 141-42, 10 Cal.Rptr.3d 333. The court denied the motion, reasoning that, "[h]ad the advertisements here been `merely . . . adjunct[s] to the exhibition of the film[s],'" as in Guglielmi, "such as by using photographs of actors in the films, Sony would have a point because, just as the films are noncommercial speech, so is an advertisement reflecting their content."
Perhaps most important, unlike these cases, "`[w]e deal here with the law of billboards,'" which is a "`method of communicating ideas . . . unto itself.'" See World Wide Rush, 606 F.3d at 684. In this context, recent Ninth Circuit cases have made clear that the Court should defer to the City's "reasonably graduated response to different aspects of a problem." Metro Lights, LLC v. City of Los Angeles, 551 F.3d 898, 910 (9th Cir.2009). Given that the City may constitutionally distinguish between commercial and noncommercial signs, see Outdoor Systems, 997 F.2d at 610, and may constitutionally grant officials authority to make that distinction, see id. at 613, the City must be given some space to apply the tests for commercial speech and to reach reasonable judgments as to what is and is not commercial, lest federal courts become the first-line arbiters of hundreds of thousands of billboards to be erected across the country. Plaintiffs here have not alleged that the City in this case has attempted to use the commercial/noncommercial distinction to suppress noncommercial speech and the City's judgment that the E! News billboard was commercial was both legally correct and reasonable.
Plaintiffs do not challenge the City's regulations or permitting requirements directed at commercial signs. Thus, because Plaintiffs' sign was properly deemed commercial, the City can prohibit it as an unpermitted commercial sign and Plaintiffs have failed to state a claim for free speech violations. The Court need not address any of the City's other arguments directed specifically at Plaintiffs' claims for declaratory and injunctive relief.
Plaintiffs conclusorily allege that, "by prohibiting Plaintiffs from posting their proposed signs, but allowing other favored entities and organizations to post similar signs bearing similar content, the City has violated Plaintiffs' right to equal protection." (Compl. ¶ 32.) Plaintiffs do not allege which particular signs were treated more favorably, how they were treated more favorably, or why. While these threadbare allegations provide little guidance on the issue, Plaintiffs explained the nature of this claim in their opposition: "Plaintiffs have alleged that they are similarly situated to other favored entities which have been permitted to post noncommercial temporary signs, but that the City has intentionally treated the two parties differently." (Opp'n 20 (emphasis added).)
Generally, disparate treatment by a governmental entity that does not implicate a fundamental right or a suspect classification is permissible so long as it bears a rational relationship to a legitimate state interest. Lockary v. Kayfetz, 917 F.2d 1150,
To the extent Plaintiffs raise a "classification" claim, it fails as a matter of law because the City may constitutionally distinguish between commercial and noncommercial billboards, restricting the former, while permitting the latter. See Outdoor Sys., 997 F.2d at 610-11; see also Maldonado, 556 F.3d at 1045-46. Because the city properly classified Plaintiffs' sign as commercial, it could properly ban it, while allowing noncommercial signs. Thus, Plaintiffs cannot allege a "classification" equal protection claim.
To the extent Plaintiffs invoke a "class of one" theory, they have failed to state a claim. Plaintiffs' "class of one" theory appears to be based upon the City's "improper or unlawful" refusal to allow them to erect their noncommercial sign, while allowing others to erect noncommercial signs. See Valley Outdoor, 446 F.3d at 955. However, as the Court concluded above, the City properly deemed Plaintiffs' E! News sign as commercial, so the City did not improperly or unlawfully refuse to allow Plaintiffs to erect it. While Plaintiffs might argue that the City has selectively enforced the commercial/noncommercial distinction, "[s]elective enforcement of valid laws, without more, does not make the [City's] action irrational." Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir.1995). Because the City properly classified Plaintiffs' E! News sign as commercial, Plaintiffs have not stated a claim for irrational treatment. See id. ("Although Freeman contends that other bars in high crime areas obtained dance permits, the fact remains that the denial was proper under the ordinance.").
Furthermore, even if legally cognizable, Plaintiffs do not allege any specific facts to show that the City's ultimately proper classification of their sign as commercial was arbitrary, irrational or pretext for unlawful discrimination. To the contrary, Plaintiffs have admitted that they are not uniquely the subject of irrational enforcement: they allege that they have not erected their signs "based on knowledge that the City has recently jailed and fined individuals who it believes have violated the Sign Regulations." (Compl. ¶ 13.) The Court also takes judicial notice that, far from arbitrarily enforcing the Sign Ordinance against Plaintiffs here and no one else, the City has vigorously defended the proliferation of cases brought by many sign companies challenging the Sign Ordinance.
The City moves for a more definite statement of the content of signs to be posted after the E! News sign is taken down. Plaintiffs merely allege that future signs "will bear content related to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings and other works of art." (Compl. ¶ 11.) Because these claims must be dismissed as unripe, the City's motion for a more definite statement is moot.
Plaintiffs have demonstrated standing to pursue their claims. Plaintiffs have also demonstrated that their challenge to the erection of the E! News billboard is ripe, but have failed to demonstrate that their challenge to future, unidentified signs is ripe. On the merits, Plaintiffs have failed to state claims for violations of their free speech and equal protection rights. None of these claims can be cured by amendment, so the Court DISMISSES Plaintiffs' claims WITH PREJUDICE. See Thinket Ink Info. Res., Inc. v. Sun Microsys., Inc., 368 F.3d 1053, 1061 (9th Cir.2004). The City's motion for a more definite statement is DENIED as MOOT.
The City is ORDERED to lodged a proposed judgment consistent with this Order within 10 days of the filing of this Order.
IT IS SO ORDERED.
