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)

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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

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