World Wide Rush, LLC v. City of Los Angeles

• Decision Date: 09 June 2008
• Docket Number: Case No. CV 07-238 ABC (JWJx).
• 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.
• Court: U.S. District Court — Central District of California

563 F.Supp.2d 1132

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.

Case No. CV 07-238 ABC (JWJx).

United States District Court, C.D. California.

June 9, 2008.

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Michael C. Small, Rex S. Heinke, Akin Gump Strauss Hauer & Feld, Los Angeles, CA, Paul E. Fisher, Law Ofc. Paul E. Fisher, Santa Ana, CA, for Plaintiffs.

Kenneth T. Fong, Rockard J. Delgadillo, Los Angeles City Attorney's Office, Michael J. Bostrom, Deputy City Attorney, Los Angeles, CA, for Defendant.

ORDER RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION; DEFENDANT'S MOTION TO DISMISS

AUDREY B. COLLINS, District Judge.

Pending before the Court is Plaintiffs World Wide Rush, LLC and Insite Outdoor Works LA, LLC's ("Plaintiffs'") Motion for Preliminary Injunction, filed on May 5, 2008. Defendant City of Los Angeles (the "City") opposed on May 19, 2008 and Plaintiffs replied on May 23, 2008. Also pending before the Court is the City's Motion to Dismiss, filed on April 21, 2008. Plaintiffs opposed on May 5, 2008 and the City replied on May 19, 2008. The Court also ordered the parties to file simultaneous supplemental briefs on May 30, 2008, which they did. The Court heard arguments on June 9, 2008. After considering the papers, arguments, and case file in this matter, the Court GRANTS IN PART Plaintiff's Motion for Preliminary Injunction and GRANTS IN PART the City's Motion to Dismiss.

I. FACTUAL BACKGROUND

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 34 sign sites 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 (also defining "on-site" signs as "[a] sign that is other than an off-site sign."). 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].

Id.

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 ... determined] 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' 34 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. Both the City's motion to dismiss and Plaintiffs' motion for preliminary injunction are now before the Court.

II. MOTION FOR PRELIMINARY INJUNCTION

A. Legal Standard

To obtain a preliminary injunction, a plaintiff must show "either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor." Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999). "These two alternatives represent extremes of a single continuum, rather than two separate tests." Id. (internal quotations omitted). "Thus, the greater the relative hardship to [a plaintiff], the less probability of success must be shown." Id.; see also International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993). A preliminary injunction is an "extraordinary remedy" for which the need must be "clear and unequivocal." Shelton v. National Collegiate Athletic Ass'n, 539 F.2d 1197, 1199 (9th Cir.1976).

The Court may consider inadmissible evidence on a motion for preliminary injunction. See Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984) ("The urgency of obtaining a preliminary injunction necessitates a prompt determination and makes it difficult to obtain affidavits from persons who would be competent to testify at trial. The trial court may give even inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable harm."); Rosen Ent. Sys., LP v. Eiger Vision, 343 F.Supp.2d 908, 912 (C.D.Cal.2004). "The exigencies of preliminary relief often prevent the movant from procuring supporting evidence in a form that would meet Rule 56(e)'s requirement of evidence admissible at trial." Dr. Seuss Ents. v. Penguin Books USA, Inc., 924 F.Supp. 1559, 1562 (S.D.Cal.1996). "Such evidence may yet be considered by the court, which has discretion to weigh the evidence as required to reflect its reliability." Id.

B. Discussion

Plaintiffs have moved to enjoin enforcement of three provisions of the sign ordinance: the exceptions to the off-site and supergraphic sign bans found in Section 14.4.4(B)(9) and 14.4.4(B)(11), and the "Freeway Exposure" provision in Section 14.4.6. Plaintiffs challenge these provisions both as giving the City unfettered discretion to restrict speech and as imposing impermissible restrictions on commercial speech in violation of Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) ("Central Hudson"). The Court concludes that Plaintiffs can establish a likelihood of success on their unfettered discretion challenge to three of the four exceptions in section 14.4.4(B)(9) and (11) and those exceptions cannot be severed from the blanket off-site and supergraphic sign ban. Plaintiffs, however, have failed to...