World Wide Rush, LLC v. City of Los Angeles
| Decision Date | 20 August 2008 |
| Docket Number | No. CV 07-238 ABC (JWJx).,CV 07-238 ABC (JWJx). |
| Citation | 579 F.Supp.2d 1311 |
| Court | U.S. District Court — Central District of California |
| Parties | WORLD WIDE RUSH, LLC, a Pennsylvania corporation, and Insite Outdoor Works LA, LLC, a Delaware limited liability company, Plaintiffs, v. CITY OF LOS ANGELES, a California municipal corporation and Doe 1 through Doe 10, inclusive, Defendant. |
Michael C. Small, Akin Gump Strauss Hauer & Feld, Los Angeles, CA, Paul E. Fisher, Paul E. Fisher Law Office, Newport Beach, CA, for Plaintiffs.
Kenneth T. Fong, Los Angeles City Attorney's Office, Los Angeles, CA, Michael J. Bostrom, Deputy City Hall, Los Angeles, CA, Rockard J. Delgadillo, Los Angeles City Attorney's Office, Criminal and Special Litigation Branch, Los Angeles, CA, for Defendants.
Pending before the Court is Plaintiffs World Wide Rush, LLC and Insite Outdoor Works LA, LLC's ("Plaintiffs") Motion for Summary Judgment, filed on July 24, 2008. Defendant City of Los Angeles (the "City") opposed on August 4, 2008 and Plaintiffs replied on August 11, 2008. The Court finds this matter appropriate for resolution without oral argument and VACATES the August 18, 2008 hearing date. See Fed. R. Civ. Proc. 78; Local Rule 7-15. After considering the papers and case file in this matter, the Court GRANTS Plaintiffs' motion.
Plaintiffs' current motion rests on the identical grounds addressed by the Court in its June 9, 2008 Order granting Plaintiffs' motion for preliminary injunction. The facts are undisputed. Plaintiffs are licensed to engage in the business of leasing outdoor advertising space for advertisers to erect signs in the City of Los Angeles. Plaintiffs lease 21 sign sites2 within the City and the signs do not typically advertise goods or services available on the premises where they are located. Some of these signs are located within 2,000 feet of a freeway.
The City regulates outdoor signs through its "sign ordinance," Section 14 of Article 4.4 of the Los Angeles Municipal Code ("LAMC"). The sign ordinance defines "off-site" signs 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.
Section 14.4.2 (). A "supergraphic sign" is:
A sign, consisting of any image projected onto a wall or printed on vinyl, mesh, or other material with or without written text, supported and attached to a wall by an adhesive and/or by using standard cable and eye-bolts and/or other material or methods and which does not comply with
[certain other provisions of the sign ordinance].
The sign ordinance imposes a blanket ban on all off-site and supergraphic signs, unless the proposed signs are "specifically permitted pursuant to a legally adopted specific plan, supplemental use district, [or] an approved development agreement." Section 14.4.4(B)(9), (11). Off-site signs are also exempt from the blanket ban if they are "specifically permitted pursuant to ... a relocation agreement entered into pursuant to California Business and Professions Code Section 5412." Section 14.4.4(B)(11).
A separate provision of the sign ordinance regulates signs with "Freeway Exposure": "No person shall erect, construct, install, paint, maintain, and no building or electrical permit shall be issued for, any sign or sign support structure within 2,000 feet of a freeway...." Section 14.4.6. This ban exempts signs that the City's "Department of Building and Safety ... determine[s] will not be viewed primarily from a main traveled roadway of a freeway or an on-ramp/off-ramp." Id. "Viewed primarily from" a freeway means "that the message may be seen with reasonable clarity for a greater distance by a person traveling on the main traveled roadway or freeway or on-ramp/off-ramp than by a person traveling on the street adjacent to the sign." Id. This provision has two exceptions:
• Signs that "identify the building where the sign is located" are exempted, so long as "the area of the sign is not more than 50 square feet or is not larger than five percent of the area of the side of the building, which faces primarily to the freeway, which ever is greater[.]"
• Wall signs are also exempted "on which the advertising is limited to the name of any person, firm, or corporation occupying the building, or the type of business, services rendered, or the name of any product manufactured or sold on the premises," so long as "[t]he total area of all wall signs on a building permitted in this subdivision shall not exceed 100 square feet [and][a]ny one sign shall not exceed 50 square feet in area."
Id. § 14.4.6B 1, 2. The "Freeway Exposure" provision also exempts signs that are "specifically permitted pursuant to a legally adopted specific plan, supplemental use district, [or] an approved development agreement." Section 14.4.4(B)(9), (11).
So far, the City has enforced the sign ordinance against seven of Plaintiffs' sign locations. The City's Orders to Comply for these sites alleged that the signs are unpermitted "supergraphic" signs. Plaintiffs have applied for permits for these sites, which have been denied. One site at 6081 Center Drive has been subject to criminal prosecution and the City has threatened criminal prosecution for the other six sites.
This litigation has been pending since January 2007. The City moved to dismiss Plaintiffs' initial complaint and the Court partially granted that motion, allowing Plaintiffs to pursue their facial unfettered discretion and overbreadth challenges to certain aspects of the sign ordinance. The Court ruled that most of Plaintiffs' other challenges, including their as-applied challenges, failed because they did not allege that the City had taken (or was likely to take) any enforcement efforts against their sign sites. After this ruling, Plaintiffs declined to file an amended complaint.
In January 2008, Plaintiffs moved for a preliminary injunction based upon claims that either had not survived the motion to dismiss or were never alleged in Plaintiffs' complaint to begin with. To compound Plaintiffs' problems, the deadline to amend the pleadings in the Scheduling Order had passed. The Court declined to rule on the motion for preliminary injunction, instead ordering Plaintiffs to move to amend the Scheduling Order. Plaintiffs so moved the Court, and, although the Court initially denied Plaintiffs' motion to add new claims to its complaint, the Court ultimately allowed Plaintiffs to filed an amended and supplemental complaint adding facts to allege standing and asserting new claims. The Court also reopened discovery.
In lieu of filing an answer, the City filed a motion to dismiss Plaintiffs' amended complaint, which the Court partially granted in the June 9, 2008 Order. The Court also partially granted Plaintiffs' motion for a preliminary injunction, concluding that Plaintiffs were likely to prevail on two of their claims, namely their facial challenge to sections 14.4.4B(9) and 14.4.4B(11) because those provisions unfettered discretion to City officials to deny signs, and their as-applied challenge to section 14.4.6 because this provision constitutes an impermissible restriction on commercial speech. The Court recognized that Plaintiffs had other claims that survived the Court's Order, but Plaintiffs have since indicated that they will abandon those additional claims in favor of the two identified above should the Court grant their motion for summary judgment. Therefore, the Court will focus only on those claims in this Order.
It is the burden of the party who moves for summary judgment to establish that there is "no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978). If the moving party has the burden of proof at trial (the plaintiff on a claim for relief, or the defendant on an affirmative defense), the moving party must make a showing sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. See Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986) (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). This means that, if the moving party has the burden of proof at trial, that party "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [that party's] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986).
If the opponent has the burden of proof at trial, then the moving party has no burden to negate the opponent's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, the moving party does not have the burden to produce any evidence showing the absence of a genuine issue of material fact. Id. at 325, 106 S.Ct. 2548. "Instead ... the burden on the moving party may be discharged by `showing'— that is, pointing out to the district court— that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party satisfies this initial burden, Fed.R.Civ.P. 56(e) (emphasis added). A "genuine issue" of material fact exists only when the...
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