NorCal Outdoor Media, LLC v. Becerra et al
Filing
40
ORDER signed by District Judge John A. Mendez on 4/26/2021 GRANTING Defendant's 34 Motion to Dismiss Without Leave to Amend; and ORDERING Plaintiff's counsel to send a check payable to the Clerk for Eastern District of California for $425.00 for exceeding the Court's page limit. (Becknal, R)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10
NORCAL OUTDOOR MEDIA, LLC,
11
14
15
16
17
v.
Defendants.
19
21
22
23
24
25
26
27
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
XAVIER BECERRA, in his
official capacity as the
Attorney General of
California, ADETOKUNBO
OMISHAKIN, in his official
capacity as Director of the
California Department of
Transportation,
18
20
2:19-cv-02338-JAM-DB
Plaintiff,
12
13
No.
NorCal Outdoor Media, LLC (“Plaintiff”) continues to pursue
its challenge to the California Outdoor Advertising Act (“OAA”),
Cal. Bus. & Prof. Code § 5200 et seq., see First Am. Compl.
(“FAC”), ECF No. 32, after the Court granted Adetokunbo
Omishakin’s (“Defendant”) motion for judgment on the pleadings,
see Order Granting Mot. for J. on Plead. (“Order JOP”), ECF No.
28.
The Court granted Defendant’s previous motion because
Plaintiff lacked standing to pursue its claims.
Id.
Never
having sought a permit from the California Department of
28
1
1
Transportation (“CalTrans”) to erect its billboards, Plaintiff’s
2
injury proved to be purely hypothetical.
3
Id. at 9.
Here, too, Plaintiff fails to state a concrete injury under
4
the sign ordinance.
As a result, the Court GRANTS Defendant’s
5
Motion to Dismiss (“Mot.”), ECF No. 34.1
6
7
I.
8
9
OPINION
Plaintiff’s FAC alleges the OAA violates its free speech,
equal protection, and due process rights under the United States
10
and California Constitutions.
See FAC ¶¶ 87–95, 96–102, 107–111.
11
Defendant argues Plaintiff lacks standing, the claims are unripe,
12
and Plaintiff failed to state cognizable claims under either the
13
First and Fourteenth Amendments to the United States Constitution
14
or the California Constitution’s equivalent provisions.
15
generally Mot.
16
to exercise supplemental jurisdiction over the state law claims
17
and the prayer for monetary damages violates the Eleventh
18
Amendment to the United States Constitution and California’s
19
Government Claims Act.
20
Opp’n, ECF No. 35.
See
Defendant further argues the Court should decline
Id.
Plaintiff opposes the motion.
21
A.
Standing
22
Standing is a “threshold question” in “determining the power
23
of the court to entertain the suit.”
Warth v. Seldin, 422 U.S.
24
490, 498 (1975).
25
(1) suffered an injury in fact, (2) that is fairly traceable to
To establish standing, a “plaintiff must have
26
27
28
This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for March 23, 2021.
2
1
1
the challenged conduct of the defendant, and (3) that is likely
2
to be redressed by a favorable judicial decision.”
3
v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24,
4
2016).
5
must show it suffered “an invasion of a legally protected
6
interest” that is “concrete and particularized” and “actual or
7
imminent, not conjectural or hypothetical.”
8
Wildlife, 504 U.S. 555, 560–61 (1992).
9
“requires that the party seeking review be himself among the
10
11
Spokeo, Inc.
Insofar as the injury in fact is concerned, Plaintiff
injured.”
Lujan v. Defs. of
The injury-in-fact test
Sierra Club v. Morton, 405 U.S. 727, 734–35 (1972).
This time around, Plaintiff focuses on the fact that non-
12
party San Joaquin County has not issued Plaintiff a sign permit.
13
FAC ¶¶ 51–53.
14
sign permit because CalTrans has not issued it an outdoor
15
advertising permit.
16
never applied for a permit with CalTrans.
17
never denied a permit.
18
reason for the denial, nor given the opportunity to appeal it.
19
This also means that Plaintiff does not know whether the appeal
20
would have been successful or whether it would have resulted in
21
civil penalties.”
22
obtain a permit from San Joaquin County is not connected to any
23
action taken by CalTrans.
24
inaction.
25
Plaintiff alleges the County has not issued it a
FAC ¶ 54.
However, as before, Plaintiff
Thus: “Plaintiff was
Which means Plaintiff was never told the
Order JOP at 7.
Plaintiff’s inability to
It is only traceable to Plaintiff’s
That CalTrans requires written evidence from Plaintiff that
26
San Joaquin County consents to the billboard as part of its
27
permit application does not prevent Plaintiff from applying for
28
an outdoor advertising permit from CalTrans.
3
See Opp’n at 13;
1
FAC ¶¶ 56, 59.
That San Joaquin County will not provide written
2
evidence unless Plaintiff first obtains approval for the
3
billboard from CalTrans raises a potential issue with San Joaquin
4
County’s permitting process, not CalTran’s.
5
Plaintiff does not cite any authority that stands for the
6
proposition that San Joaquin County’s failure to issue a permit
7
under its own sign ordinance gives Plaintiff standing to
8
challenge the OAA—an entirely different set of regulations.
9
Reply at 2, ECF No. 38.
As Defendant notes,
As a result, the factual allegations in
10
the FAC are not fairly traceable to Defendant.
11
S. Ct. at 1547 (the injury must be fairly traceable to the
12
challenged conduct of the defendant).
13
See Spokeo, 136
Plaintiff’s argument that its speech is chilled “because
14
there is no time period by which [CalTrans] must grant or deny a
15
permit application” has no teeth.
16
OAA, CalTrans “shall, within 10 days after compliance and upon
17
payment by the applicant of the fee provided by this chapter,
18
issue a permit . . . .” Cal. Bus. & Prof. C. § 5358.
19
Plaintiff’s reliance on Desert Outdoor Advertising Inc. v. City
20
of Moreno Valley, 103 F.3d 814 (9th Cir. 1996) is misplaced.
21
There, the city brought an enforcement action against the
22
plaintiff and compelled the plaintiff to remove its signs.
23
at 818.
24
city’s sign ordinance.
25
sort of enforcement action against Plaintiff.
26
Opp’n at 13.
Pursuant to the
And
Id.
As a result, the plaintiff had standing to challenge the
Id.
Here, CalTrans has not initiated any
Advertising companies like Plaintiff’s do not have standing
27
to challenge the provisions of a sign ordinance that have not
28
been invoked against it.
Get Outdoors II, LLC. v. City of San
4
1
Diego, 506 F. 3d 886, 892 (9th Cir. 2007).
2
OAA has been invoked against Plaintiff because Plaintiff has not
3
sought a permit with CalTrans.
4
invasion of a legally protected interest that is either concrete
5
and particularized or actual and imminent.
6
at 560–61.
7
defects as Plaintiff’s original complaint, the Court dismisses
8
Plaintiff’s FAC with prejudice.
9
Aviation Sec. Servs., 454 F.3d 1043, 1049 (9th Cir. 2006) (courts
10
No provision of the
Plaintiff has not alleged an
See Lujan, 504 U.S.,
Considering Plaintiff’s FAC suffers from the same
See Deveraturda v. Globe
need not grant leave to amend where amendment would be futile).
11
B.
Sanctions
12
Plaintiff exceeded the Court’s 15-page limit on opposition
13
memoranda.
See Opp’n; see also Order re Filing Requirements
14
(Order), ECF No. 3-2.
15
require the offending counsel (not the client) to pay $50.00 per
16
page over the page limit to the Clerk of the Court.
17
Moreover, the Court will not consider arguments made past the
18
page limit.
19
exceeded the Court’s page limit by 8.5 pages.
20
counsel must therefore send a check payable to the Clerk for the
21
Eastern District of California for $425.00 no later than seven
22
days from the date of this order.
Id.
Violations of the Court’s standing order
Order at 1.
In total, Plaintiff’s opposition memorandum
Plaintiff’s
23
24
25
II.
ORDER
For the reasons set forth above, Defendant’s Motion to
26
Dismiss is GRANTED WITHOUT LEAVE TO AMEND.
Plaintiff lacks
27
standing to pursue its claims.
28
this Court need not address whether Plaintiff’s claims are ripe
Because Plaintiff lacks standing,
5
1
or whether Plaintiff adequately stated a claim under Rule
2
12(b)(6).
3
1100, 1102 (9th Cir. 2006) (“Because [the plaintiff] lacked
4
standing . . . the district court lacked subject matter
5
jurisdiction and should have dismissed the complaint on that
6
ground alone.”).
7
8
Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d
IT IS SO ORDERED.
Dated: April 26, 2021
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?