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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORCAL OUTDOOR MEDIA, LLC,

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v.

Defendants.

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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,

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2:19-cv-02338-JAM-DB

Plaintiff,

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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

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Transportation (“CalTrans”) to erect its billboards, Plaintiff’s

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injury proved to be purely hypothetical.

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Id. at 9.

Here, too, Plaintiff fails to state a concrete injury under

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the sign ordinance.

As a result, the Court GRANTS Defendant’s

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Motion to Dismiss (“Mot.”), ECF No. 34.1

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I.

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OPINION

Plaintiff’s FAC alleges the OAA violates its free speech,
equal protection, and due process rights under the United States

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and California Constitutions.

See FAC ¶¶ 87–95, 96–102, 107–111.

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Defendant argues Plaintiff lacks standing, the claims are unripe,

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and Plaintiff failed to state cognizable claims under either the

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First and Fourteenth Amendments to the United States Constitution

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or the California Constitution’s equivalent provisions.

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generally Mot.

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to exercise supplemental jurisdiction over the state law claims

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and the prayer for monetary damages violates the Eleventh

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Amendment to the United States Constitution and California’s

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Government Claims Act.

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Opp’n, ECF No. 35.

See

Defendant further argues the Court should decline

Id.

Plaintiff opposes the motion.

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A.

Standing

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Standing is a “threshold question” in “determining the power

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of the court to entertain the suit.”

Warth v. Seldin, 422 U.S.

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490, 498 (1975).

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(1) suffered an injury in fact, (2) that is fairly traceable to

To establish standing, a “plaintiff must have

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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.
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the challenged conduct of the defendant, and (3) that is likely

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to be redressed by a favorable judicial decision.”

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v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24,

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2016).

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must show it suffered “an invasion of a legally protected

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interest” that is “concrete and particularized” and “actual or

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imminent, not conjectural or hypothetical.”

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Wildlife, 504 U.S. 555, 560–61 (1992).

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“requires that the party seeking review be himself among the

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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-

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party San Joaquin County has not issued Plaintiff a sign permit.

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FAC ¶¶ 51–53.

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sign permit because CalTrans has not issued it an outdoor

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advertising permit.

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never applied for a permit with CalTrans.

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never denied a permit.

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reason for the denial, nor given the opportunity to appeal it.

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This also means that Plaintiff does not know whether the appeal

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would have been successful or whether it would have resulted in

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civil penalties.”

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obtain a permit from San Joaquin County is not connected to any

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action taken by CalTrans.

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inaction.

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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

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San Joaquin County consents to the billboard as part of its

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permit application does not prevent Plaintiff from applying for

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an outdoor advertising permit from CalTrans.
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See Opp’n at 13;

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FAC ¶¶ 56, 59.

That San Joaquin County will not provide written

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evidence unless Plaintiff first obtains approval for the

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billboard from CalTrans raises a potential issue with San Joaquin

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County’s permitting process, not CalTran’s.

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Plaintiff does not cite any authority that stands for the

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proposition that San Joaquin County’s failure to issue a permit

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under its own sign ordinance gives Plaintiff standing to

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challenge the OAA—an entirely different set of regulations.

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Reply at 2, ECF No. 38.

As Defendant notes,

As a result, the factual allegations in

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the FAC are not fairly traceable to Defendant.

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S. Ct. at 1547 (the injury must be fairly traceable to the

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challenged conduct of the defendant).

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See Spokeo, 136

Plaintiff’s argument that its speech is chilled “because

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there is no time period by which [CalTrans] must grant or deny a

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permit application” has no teeth.

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OAA, CalTrans “shall, within 10 days after compliance and upon

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payment by the applicant of the fee provided by this chapter,

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issue a permit . . . .” Cal. Bus. & Prof. C. § 5358.

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Plaintiff’s reliance on Desert Outdoor Advertising Inc. v. City

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of Moreno Valley, 103 F.3d 814 (9th Cir. 1996) is misplaced.

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There, the city brought an enforcement action against the

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plaintiff and compelled the plaintiff to remove its signs.

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at 818.

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city’s sign ordinance.

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sort of enforcement action against Plaintiff.

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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

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to challenge the provisions of a sign ordinance that have not

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been invoked against it.

Get Outdoors II, LLC. v. City of San
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Diego, 506 F. 3d 886, 892 (9th Cir. 2007).

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OAA has been invoked against Plaintiff because Plaintiff has not

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sought a permit with CalTrans.

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invasion of a legally protected interest that is either concrete

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and particularized or actual and imminent.

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at 560–61.

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defects as Plaintiff’s original complaint, the Court dismisses

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Plaintiff’s FAC with prejudice.

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Aviation Sec. Servs., 454 F.3d 1043, 1049 (9th Cir. 2006) (courts

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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).

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B.

Sanctions

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Plaintiff exceeded the Court’s 15-page limit on opposition

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memoranda.

See Opp’n; see also Order re Filing Requirements

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(Order), ECF No. 3-2.

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require the offending counsel (not the client) to pay $50.00 per

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page over the page limit to the Clerk of the Court.

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Moreover, the Court will not consider arguments made past the

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page limit.

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exceeded the Court’s page limit by 8.5 pages.

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counsel must therefore send a check payable to the Clerk for the

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Eastern District of California for $425.00 no later than seven

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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

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II.

ORDER

For the reasons set forth above, Defendant’s Motion to

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Dismiss is GRANTED WITHOUT LEAVE TO AMEND.

Plaintiff lacks

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standing to pursue its claims.

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this Court need not address whether Plaintiff’s claims are ripe

Because Plaintiff lacks standing,

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or whether Plaintiff adequately stated a claim under Rule

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12(b)(6).

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1100, 1102 (9th Cir. 2006) (“Because [the plaintiff] lacked

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standing . . . the district court lacked subject matter

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jurisdiction and should have dismissed the complaint on that

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ground alone.”).

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Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d

IT IS SO ORDERED.
Dated: April 26, 2021

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