Get Outdoors II, LLC v. City of El Cajon
| Decision Date | 12 February 2007 |
| Docket Number | No. 03-CV-1437 W(RBB).,03-CV-1437 W(RBB). |
| Citation | 475 F.Supp.2d 1256 |
| Parties | GET OUTDOORS II, LLC, Plaintiff, v. CITY OF EL CAJON, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Edward Adam Webb, Webb and Porter, Atlanta, GA, Patrick Lund, Lund Martin O'Neil, Newport Beach, CA, for Get Outdoors LLC A Nevada Limited Liability Company, Plaintiff.
Steven Eugene Boehmer, McDougal Love Eckis Smith Boehmer and Foley, El Cajon, CA, for City of El Cajon, California, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On July 21,2003, Plaintiff Get Outdoors II, LLC ("Get Outdoors") commenced this action against Defendant City of El Cajon ("El Cajon") claiming that El Cajon violated Get Outdoors' First Amendment rights. El Cajon now moves for summary judgment on all claims. The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d.1). For the reasons stated below, the Court DENIES El Cajon's summary-judgment motion.
Get Outdoors is a Nevada limited liability company, authorized to operate outdoor advertising signs throughout the State. El Cajon is a political subdivision of the State of California.
Get Outdoors is "pursuing opportunities in the outdoor advertising industry in Southern California." In the instant case, they seek to post signs in El Cajon for the purpose of "communicating commercial and noncommercial messages regarding products, services, ideas, candidates, issues, events, and other topics." (Pltf. Opp. at 2:5-8.) To that end, Get Outdoors negotiated with various property owners in El Cajon and arranged to lease space to display its signs. The properties are located in heavily commercial and industrial areas adjacent to major roads. On June 9, 2003, Get Outdoors submitted twelve signpermit applications to El Cajon.
On June 10, 2003, El Cajon informed Get Outdoors by correspondence that only four applications for "off premises signs" could be submitted at one time, because that was the maximum allowable number of additional off premises signs under El Cajon's Zoning Ordinance. Get Outdoors was asked to retrieve its applications, select four, and properly resubmit. Get Outdoors never resubmitted. Instead, on July 24, 2003, Get Outdoors filed its First Amended Complaint, seeking injunctive relief.
On September 30, 2003, El Cajon adopted Ordinance No. 4752 titled "An Urgency Ordinance of the City of El Cajon, Implementing New Regulations for the Placement of Signs in the City of El Cajon," repealing the Zoning Ordinance that Get Outdoors applied under. On October 6, 2003, this Court stayed the action pending final adjudication of similar cases. In 2005, the action recommenced and after a lengthy series of hearings and conferences, El Cajon moved for summary judgment on October 10, 2006.
On November 21, 2006, this Court requested supplemental briefing addressing whether El Cajon had in fact repealed the sign ordinance in effect when Get Outdoors applied for sign permits. The Court received the requested briefing from both parties and now rules on the motion.
Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23, 106 S.Ct. 2548. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).
"The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir.2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir.1995) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)).
When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
El Cajon moves for summary judgment on the grounds that the case: (1) is moot because El Cajon enacted a new sign ordinance and thus the one Get Outdoors applied under is no longer in effect; and (2) Get Outdoors lacks standing to claim damages because they never received a permit.
"Mootness is like standing, in that if it turns out that resolution of the issue presented cannot really affect the plaintiffs rights, there is, generally speaking no case or controversy for the courts to adjudicate; no real relief can be awarded." Smith v. University of Washington Law School, 233 F.3d 1188, 1193 (9th Cir. 2000). An action is moot where the issues presented are no longer "live" or when the parties lack a cognizable interest in the outcome. Jacobus v. Alaska, 338 F.3d 1095, 1102 (9th Cir.2003). For instance, often a case becomes moot when a challenged law is repealed or expires. See Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987) (); Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972) (); Princeton University v. Schmid, 455 U.S. 100, 103, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982) ().
There are exceptions to the mootness doctrine. For example, when the defendant's conduct is a wrong "capable of repetition, yet evading direct review," or when the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time. Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir.1994) ("Noatak").
El Cajon argues that the case is moot because the former sign ordinance was repealed when the "city properly enacted permanent legislation replacing the challenged ordinance." (Def. Sup. Br. at 2:17-18, emphasis added.) Get Outdoors counters by arguing that the challenged regulation is still in effect because the ordinance enacted to adopt a new sign code (Ordinance No. 4752) expired forty-five days after it was enacted, thereby reviving the constitutionally deficient regulation. (Pl. Sup. Br. at 4:12-14.) The Court agrees with the Get Outdoors that Ordinance No. 4752 has expired. Thus, Get Outdoors' challenge is not moot.
California Government Code § 65850 defines the scope of power granted to California cities to regulate by ordinance. See Cal. Govt.Code § 65850. That power specifically includes the authority to "Regulate signs and billboards." Id. at 65850(b). The chapter further explains that any zoning ordinance imposing any regulation in Section 65850 "shall be adopted in the manner set forth in Sections 65854 to 65857." Id. at 65853. Those sections detail, in part, various procedural safeguards required before adopting an ordinance. For example, Section 65854 requires the planning commission to hold a public hearing on their recommendation and to give prior notice of the hearing to the public. Id. at 65854. The required procedures are constitutionally mandated to guarantee property owners due process of law. Scott v. City of Indian Wells, 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, ...
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