Covenant Media, Cal. v. City, Huntington Park, Ca

• Citation: 377 F.Supp.2d 828
• Decision Date: 18 July 2005
• Docket Number: No. CV052885MMMCWX.,CV052885MMMCWX.
• Parties: COVENANT MEDIA OF CALIFORNIA, L.L.C. Plaintiff, v. CITY OF HUNTINGTON PARK, CALIFORNIA Defendant.
• Court: U.S. District Court — Central District of California

377 F.Supp.2d 828

COVENANT MEDIA OF CALIFORNIA, L.L.C. Plaintiff, v. CITY OF HUNTINGTON PARK, CALIFORNIA Defendant.

No. CV052885MMMCWX.

United States District Court, C.D. California.

July 18, 2005.

Counsel for Plaintiff Covenant Media of California, L.L.C.: Brian C. Shapiro, Law Offices of Lawrence D. Rohlfing, Santa Fe Springs, CA, E. Adam Webb, The Webb Law Group, L.L.C., Atlanta GA.

Counsel for Defendant City of Huntington Park, California. H. Francisco Leal, Huntington Park City Attorney, and Timothy M. Hoffman, Leal and Dominguez, Los Angeles, CA Randal R. Morrison, Sabine and Morrison, San Diego, CA.

ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

MORROW, District Judge.

On April 19, 2005, Covenant Media of California, L.L.C. filed this action against the City of Huntington Park, California, challenging the City's rejection of Covenant's applications to display advertising signs. Covenant contends that the City's sign regulation, codified at Title 9, Chapter 3, Article 9, § 9-3.1201, et seq. (the "Prior Sign Ordinance") is unconstitutional under the First and Fourteenth Amendments to the United States Constitution and Article 1, section 2 of the California Constitution. Covenant seeks (1) a preliminary and permanent injunction against enforcement of defendant's sign restrictions; (2) an order directing defendant to permit plaintiff to display the signs that were the subject of its applications; (3) an order directing defendant to provide the necessary certification to the State of California; (4) actual, consequential, presumed, and general damages; (5) attorneys' fees and costs of bringing suit; and (6) such other and further relief as the court deems just and equitable.

By this motion, Covenant "requests that the Court enter an order preliminary enjoining enforcement of the [Prior] Sign Ordinance."¹ After the date Covenant filed the motion, the City repealed the Prior Sign Ordnance and enacted Ordinance 754-NS as "an urgency measure" effective June 20, 2005 (the "Current Sign Ordinance"). The Current Sign Ordinance is codified at Title 9, Chapter 3, Article 12. The City contends that its repeal of the Prior Sign Ordinance renders Covenant's motion for preliminary injunction moot. It also asserts that "[t]he Court should seriously consider sua sponte dismissal for mootness and/or lack of standing."²

I. FACTUAL BACKGROUND

Covenant posts and operates advertising signs.³ It alleges that the City "has denied at least one sign application [that it has] submitted," and that the City "has rejected and refused to fully process 13 additional applications...."⁴ Specifically, Covenant asserts that "Eric K. Garcia, Assistant City Planner, denied [its] application [for a sign permit at 5932 Pacific Bouleyard] verbally by stating that billboards were prohibited in the City of Huntington Park," and that he refused to process Covenant's remaining applications for the same reason.⁵

Covenant asserts that the Prior Sign Ordinance, which was in force at the time Garcia allegedly rejected and/or refused to process its applications, makes a impermissible content-based distinction between on-site and off-site signs. It contends that this distinction favors commercial over noncommercial speech by banning signs that convey messages unrelated to the parcel where they are located.⁶ Because the Prior Sign Ordinance defines a "`[b]illboard or off-site sign'" as "a sign [or] structure advertising an establishment, merchandise, service or entertainment, which is not sold, produced, manufactured or furnished at the property on which the sign is located," Covenant asserts that it effectively bans "virtually all noncommercial speech."⁷ Covenant also complains that the Prior Sign Ordinance's limits on the content and timing of political signs discriminate against noncommercial speech.⁸ It contends that such content-based regulation of non-commercial speech is subject to strict scrutiny, and that no compelling government interest supports the restrictions imposed. As respects the restrictions placed on commercial speech by the Prior Sign Ordinance. Covenant asserts that they are invalid under the test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).⁹ It mounts various other challenges to the provisions of the Prior Sign Ordinance under which its applications were judged as well: (1) the fact that the ordinance does not include procedural safeguards, including a time limit on City consideration of sign permit applications;¹⁰ (2) the fact that the ordinance does not provide narrow objective standards to guide officials' exercise of discretion in granting or denying permits;¹¹ and (3) the fact that the ordinance is impermissibly vague and violates due process.¹² In addition to challenging provisions of the ordinance that directly affected the City's consideration of its applications, Covenant also contends that the Prior Sign Ordinance unduly burdens citizens' ability to place signs on private residential property in nonbusiness districts.¹³

The City contends that all of these challenges are moot, because the Prior Sign Ordinance has been repealed and the Current Sign Ordinance enacted in its place. The Current Sign Ordinance differs from its predecessor in several respects.¹⁴ Most significantly, it contains a provision concerning the "substitution of messages," that was the earlier ordinance lacked.¹⁵ This provision states:

"Subject to the property owner's consent, a noncommercial message of any type may be substituted for any duly permitted or allowed commercial message or any duly permitted or allowed noncommercial message, provided the sign structure or mounting device is legal without consideration of message content. Substitution of message may be made without any additional approval or permitting. This provision prevails over any more specific provision to the contrary within this Article. The purpose of this provision is to prevent any inadvertent favoring of commercial speech over noncommercial speech, or favoring of any particular noncommercial message over any other noncommercial message."¹⁶

The City contends that this provision, which permits the substitution of any noncommercial sign for a commercial or noncommercial sign that is legally on display, "completely validate[s] the City's new sign ordinance against all claims of `favoring commercial speech' and `content based regulation.'"¹⁷ It also contends that the inclusion of a "message substitution" provision renders the Current Sign Ordinance content-neutral, and obviates the need for procedural safeguards.¹⁸ As a result, the City asserts, Covenant's argument that the Prior Sign Ordinance lacked procedural safeguards is moot.¹⁹

Covenant contends that the Current Sign Ordinance is constitutionally infirm,²⁰ and that it will expire shortly after the hearing on this motion. Because the Current Sign Ordinance was "declared an urgency measure," it took effect immediately upon its adoption on June 20, 2005, and is set to expire 45 days thereafter, unless it is extended pursuant to California GovernmentCode § 65858.²¹ Covenant appears to request that the court enjoin both the old and new ordinance on the basis that they are unconstitutional.²²

II. DISCUSSION

A. Legal Standard Governing Preliminary Injunctive Relief

In deciding whether to issue a preliminary injunction, the court must consider: (1) the likelihood that the moving party will succeed on the merits of its claim; (2) the possibility of irreparable injury to the moving party if relief is not granted; (3) the extent to which the balance of hardships tips in favor of one party or the other; and in certain cases (4) whether the public interest will be advanced by granting preliminary relief. Miller v. California Pacific Medical Center, 19 F.3d 449, 456 (9th Cir.1994); see also Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir.2005); Mayweathers v. Newland, 258 F.3d 930, 938 (9th Cir.2001).

The court may issue a preliminary injunction if the moving party establishes either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) the existence of serious questions going to the merits, a demonstration that there is at least a fair chance the movant will prevail, and a balance of hardships that tips sharply in the movant's favor. Save Our Sonoran, supra, 408 F.3d at 1120; Textile Unlimited, Inc. v. A.BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir.2001); Miller, supra, 19 F.3d at 456. "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Miller, supra, 19 F.3d at 456; see also Save Our Sonoran, supra, 408 F.3d at 1120; Tillamook County v. U.S. Army Corps of Engineers, 288 F.3d 1140, 1143 (9th Cir.2002) ("These are not alternative tests but, instead, are extremes of a single continuum").

B. Legal Standard Governing Mootness Of A Request For Injunctive Relief

Voluntary cessation of unlawful conduct does not moot a request for injunctive relief if the unlawful conduct may recur. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. TOC), Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("A defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case"). In fact, "a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Id. at 190, 120 S.Ct. 693. Cessation of illegal conduct does, however, "render a controversy moot where there is no reasonable expectation that the putatively illegal conduct will be repeated, and there are no remaining effects of the alleged violation." Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988); see Polo Fashions. Inc. v....