Citizens for Free Speech, LLC et al v. County of Alameda

Filing 1

COMPLAINT (with jury demand) against County of Alameda (Filing fee $400, receipt number 0971-8659059). Filed by Citizens for Free Speech, LLC, Michael Shaw. (Attachments: # 1 Civil Cover Sheet)(Furman, Joshua) (Filed on 6/1/2014) Modified on 6/2/2014 (cjlS, COURT STAFF).

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Joshua R. Furman, Bar No. 225461
[e-mail]
JOSHUA R. FURMAN LAW CORPORATION
15260 Ventura Boulevard, Suite 2250
Sherman Oaks, California 91403
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiffs,
CITIZENS FOR FREE SPEECH, LLC,
MICHAEL SHAW

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CITIZENS FOR FREE SPEECH,
LLC; MICHAEL SHAW
Plaintiffs,

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v.
COUNTY OF ALAMEDA,
Defendant.

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COMPLAINT FOR CIVIL RIGHTS
VIOLATION AND INJUNCTIVE
AND DECLARATORY RELIEF;
Civil Rights Action (42 U.S.C. Section
1983) and Pendant Claim under
California Constitution for Damages,
Declaratory Relief, and Injunctive
Relief
1. 42 U.S.C. § 1983 [Free Speech]

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2. 42 U.S.C. § 1983 [Equal Protection]

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3. 42 U.S.C. § 1988 [Civil Rights]

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4. California Constitution, Art. 1, § 2
[Free Speech]

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5. California Constitution, Art. 1, § 7
[Equal Protection]

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DEMAND FOR JURY TRIAL

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CASE NO.

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Complaint

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Plaintiff CITIZENS FOR FREE SPEECH, LLC alleges the following:

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PARTIES

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1.

Plaintiff CITIZENS FOR FREE SPEECH, LLC (“Citizens”) is

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Nevada limited liability company qualified to do business in California and with a

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primary place of business in Jacksonville, Oregon.

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2.

Plaintiff MICHAEL SHAW (“Shaw”) is an individual residing

within this District.
3.

Defendant COUNTY OF ALAMEDA (“County”) is a political

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subdivision of the State of California, and is a “person” subject to suit within the

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meaning of 42 U.S.C. § 1983. It is vested with the supervision of regulations and

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approval of signs within its geographic limits. The County is within this District.
JURISDICTION AND VENUE

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4.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§

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1331 & 1343. Pendant and supplemental jurisdiction is alleged under 28 U.S.C.

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§ 1367 and FRCP 18, for Plaintiffs’ claims under the California Constitution

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5.

Pursuant to Civil L.R. 3-2(c), this case shall be assigned to the San

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Francisco or the Oakland Division because the action arises in Alameda County.

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This Court is an appropriate venue for this cause of action pursuant to 28 U.S.C.

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1391(b)(1) and (b)(2). The actions complained of took place in this judicial

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district, evidence is maintained in this judicial district, the signs erected are in this

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district, and but for the unlawful regulations and practices of Defendant, Plaintiff

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would not be subject to monetary fines and deprivation of property.
FACTS COMMON TO ALL CAUSES OF ACTION

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Plaintiff Shaw is the owner of a parcel of land located at 8555 Dublin

Canyon Road within the County (the “Parcel”).
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The Parcel is a located within a Scenic Corridor Combining District

(“SC”) designated by the County.
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The Parcel is located within a Planned Development District within
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Complaint

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the SC, and the present use of the Parcel is subject to a conditional use permit.
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There is presently on the Parcel an operating self-storage business

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with individual lockers to accommodate the storage of customers’ property as well

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as open storage for customers’ recreational vehicles.
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Plaintiff Citizens has entered into an agreement with Shaw for the

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construction and display of signs on the Parcel. Under the terms of the agreement

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between Citizens and Shaw, each will receive a portion of all proceeds earned

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from the display of signs on the Parcel.
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Citizens has constructed three signs on the Parcel per the agreement

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with Shaw. Each sign has two faces. The messages on each face of the signs as

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initially constructed consist wholly of noncommercial speech, and read as follows:

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(i) “Huge Plans That Affect You! ‘One Bay Area’ aka ‘Plan Bay Area’”; (ii)

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“Stack and Parkprojects & Gridlock, Relocation of People: Rural to Urban, Cities

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and Counties Dissolve into ‘Region’”; (iii) “Plans dictated by non-elected councils

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called ‘ABAG’ and ‘ICLEI’”; (iv) “‘ABAG’ and ‘ICLE’ use ‘environment’ to

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impose bogus agendas”; (v) “Intensely urbanizing transforming your way of life,

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stop

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GlobalizationOfCalifornia.com” (the “Signs”).

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‘One
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Bay

Area’”;

(vi)

“Inquiring

Minds

Invited!

Citizens intends to display both commercial and noncommercial

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speech on the Signs in the future. Citizens intends to display both onsite and

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offsite commercial speech on the Signs in the future.

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13.

The Signs were constructed in conformity with all applicable

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building standards and engineering requirements as promulgated by the County

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and the State of California.

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Prior to the construction of the Signs, there was, and remains, another

sign on the Parcel displaying onsite commercial speech.
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The County has promulgated certain ordinances, known as the

Alameda County Code of Ordinances (the “Code”). The Code regulates the
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Complaint

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display of signs in unincorporated areas of the County.
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Pursuant to section 17.04.010 of the Code, a “Billboard” is a

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“permanent structure or sign used for the display of offsite commercial messages

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and shall include and be synonymous with ‘advertising sign.’”

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Pursuant to section 17.30.240 of the Code, within an SC District,

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“[n]o advertising signs shall be permitted.” This prohibition is repeated at section

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17.52.550.

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Pursuant to section 17.52.515 of the Code: “… no person shall

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install, move, alter expand, modify, replace or otherwise maintain or operate any

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billboard or advertising sign in the unincorporated of Alameda County, except …

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(2) Those billboards or advertising signs for which a valid permit has been issued

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and has not expired … .”

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19.

The Code does not include any stated purpose for the speech

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restrictions set forth in sections 17.04.010, 17.30.240, and 17.52.515, or for the

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distinction of commercial speech therein.

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20.

The

Code

includes

multiple

content-based

exemptions

and

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exceptions from the speech restrictions set forth in sections 117.04.010,

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17.30.240, and 17.52.515, many of which grant the County, or various entities

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within and instrumentalities of, the County unfettered discretion to permit or deny

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permission for displaying signs.

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Pursuant to section 17.18.120 of the Code, any land use at issue must

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“conform to the approved land use and development plan,” which is “adopted by

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the board of supervisors” of the County (“Land and Development Plan”). Under

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section 17.18.130, if in the “opinion of the [County] planning commission,” the

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land use represents a “material change” to the Land and Development Plan, the

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proposed land use will not be permitted. If the Planning Commission finds that

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the each or all of the Signs is not a “material change,” then the Signs may be

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permitted under a conditional use permit as provided in section 17.54.135 of the
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Complaint

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Code.
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The Code provides no standards to guide the County Planning

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Commission in determining whether any given proposed land use constitutes a

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“material change” to the Land and Development Plan. The Code provides no time

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limit for the County Planning Commission to rule as to whether the proposed use

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is a material change to the Land and Development Plan. Accordingly, the County

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Planning Commission has been given unfettered discretion to rule whether or not

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each or any of the Signs constitutes a material change to the Land and

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Development Plan.

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Pursuant to section 17.52.520 of the Code, some signs are exempt

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from the speech restrictions set forth in sections 17.04.010, 17.30.240, and

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17.52.515 based on the content of the speech displayed thereon. Such signs

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include: official public signs, no trespass signs, warning signs, signs identifying a

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benefactor, signs placed on or attached to bus stop benches or transit shelters in

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the public right-of-way when approved by the director of the public works agency,

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and, any sign which has been determined by the historical landmarks committee to

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have “significant historical merit.”

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The Code provides no standards to guide the historical landmarks

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committee to determine whether a sign has “significant historical merit,” and

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provides no standards to guide the director of the public works agency in

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determining whether to approve a sign. The Code provides no time limit for the

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historical landmarks committee to rule whether any given sign has “significant

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historical merit.” The Code provides no time limit for the director of the public

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works agency to approve a sign. Accordingly, the Code gives these County

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officials unfettered discretion to approve or not approve any sign under section

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17.52.520.

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Pursuant to section 17.52.560 of the Code, no advertising sign shall

be located in any district in a scenic route corridor.
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Complaint

As stated above, an

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“advertising sign” is defined in Section 17.04.010, as offsite commercial speech.

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Hence, a sign containing commercial speech advertising goods or services

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available on the property is not an advertising sign, and is not banned in a scenic

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route corridor.

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Pursuant to section 17.54.080 of the Code, any terms of Title 17 of

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the Code may be varied. Accordingly, any size sign with any content of speech is

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available upon the granting of a variance. A variance may be granted under this

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section if it is, inter alia, “not be detrimental” to the “public welfare.” The Code

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does not provide for any time limit for deciding whether a variance shall be

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issued. Thus, the County or instrumentality of the County hearing the application

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for a variance has unfettered discretion to approve or disapprove a variance

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application to display a sign of any size with any content of speech.

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Pursuant to section 17.54.135 of the Code, any sign of any size is

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available upon the granting of a conditional use permit. Accordingly, any size

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sign with any content of speech is available upon the granting of a variance. A

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conditional use permit may be granted under this section if it is “required by the

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public need” and not “materially detrimental to the public welfare.” The Code

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does not provide for any time limit for deciding whether a conditional use permit

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shall be issued. Thus, the County or instrumentality of the County hearing the

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application for a conditional use permit has unfettered discretion to approve or

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disapprove a conditional use permit application to display a sign of any size with

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any content of speech.

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The Code contains no statement establishing that the regulation of

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signs as herein described was enacted to implement a substantial government

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interest, nor what that substantial government interest might be.

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The speech restrictions set forth in the Code provide greater

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protection to commercial speech than noncommercial speech based upon content

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of the speech.
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Complaint

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Citizens is informed and believe, and based thereon alleges, that the

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County has permitted others to display signs in violation of the Code, and/or

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pursuant to variances and conditional use permits, and that such signs have been

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permitted within the SC District and various PD Districts.
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Due to the unfettered discretion afforded the County or

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instrumentalities of the County in granting or denying variances and conditional

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use permits, Citizens was not required to apply for either a variance or a

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conditional use permit prior to constructing the Signs.
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Due to the unconstitutional speech restraints included in the Code, it

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would have been futile for Citizens to apply for building permits prior to

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constructing the Signs, as the application would have been rejected based on the

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content of the speech on the Signs.
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Unless enjoined by the Court, the County will infringe on Citizens’

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constitutionally protected rights and thereby cause irreparable injury, as damages

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alone cannot fully compensate Citizens for the ensuing harm. This threat of injury

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from continuous violations of free speech, and equal protection rights, requires

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injunctive relief.

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FIRST CAUSE OF ACTION

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FOR VIOLATION OF RIGHT OF FREE SPEECH

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UNDER THE UNITED STATES CONSTITUTION
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Plaintiffs incorporate by reference paragraphs 1 through 33 of this

Complaint as though set forth herein in their entirety.
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The Code as set forth herein subjects Plaintiffs to the deprivation of

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free speech rights secured by the First Amendment to the United States

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Constitution.
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The deprivation of Plaintiffs’ free speech rights is subject to action

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pursuant to 42 U.S.C. § 1983.

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Complaint

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SECOND CAUSE OF ACTION

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FOR VIOLATION OF RIGHT OF EQUAL PROTECTION

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UNDER THE UNITED STATES CONSTITUTION

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Plaintiffs incorporate by reference paragraphs 1 through 33 of this

Complaint as though set forth herein in their entirety.
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The Code as set forth herein subjects Plaintiffs to the deprivation of

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equal protection rights secured by the Fourteenth Amendment to the United States

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Constitution.

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The deprivation of Plaintiffs’ equal protection rights is subject to

action pursuant to 42 U.S.C. § 1983.

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THIRD CAUSE OF ACTION

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FOR CIVIL RIGHTS VIOLATIONS

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Plaintiffs incorporate by reference paragraphs 1 through 33 of this

Complaint as though set forth herein in their entirety.
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This action is brought to vindicate Plaintiffs’ civil rights under the

United States Constitution pursuant to 42 U.S.C. § 1983.
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As such, Plaintiffs are entitled to attorneys’ fees and costs, and expert

fees pursuant to 42 U.S.C. § 1988.

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FOURTH CAUSE OF ACTION

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FOR VIOLATION OF RIGHT OF FREE SPEECH

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UNDER THE CALIFORNIA CONSTITUTION

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Plaintiffs incorporate by reference paragraphs 1 through 33 of this

Complaint as though set forth herein in their entirety.
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The Code infringes on Plaintiffs’ rights of free speech guaranteed by

the California Constitution.
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Pursuant to California Civil Code section 52.1, Plaintiffs are entitled

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to injunctive relief barring the County from infringing on Plaintiffs’ right of free

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speech, and attorneys’ fees in bringing this action.
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Complaint

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FIFTH CAUSE OF ACTION

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FOR VIOLATION OF RIGHT OF EQUAL PROTECTION

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UNDER THE CALIFORNIA CONSTITUTION
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Complaint as though set forth herein in their entirety.
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The Code infringes on Plaintiffs’ rights of equal protection

guaranteed by the California Constitution.
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Plaintiffs incorporate by reference paragraphs 1 through 33 of this

Pursuant to California Civil Code section 52.1, Plaintiffs are entitled

to injunctive relief barring the County from infringing on Plaintiffs’ right of free

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speech, and attorneys’ fees in bringing this action.

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Complaint

PRAYER FOR RELIEF

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WHEREFORE, Plaintiffs respectfully request judgment jointly and

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severally and/or separately as appropriate against Defendants cumulatively and/or

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alternatively, as appropriate, as follows:

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1.

For temporary, preliminary, and permanent injunctive relief barring

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the County from any and all conduct enforcing the unconstitutional

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Code to prohibit, encumber, or penalize Plaintiffs’ signs;

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2.

For actual damages according to proof at trial;

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3.

For additional actual, consequential, and other special damages in an
amount according to proof at trial;

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4.

For reasonable attorneys’ fees pursuant to statute(s);

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5.

For prejudgment interest from the date(s) of injury;

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For costs of suit;

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For such other and further relief as the Court deems just, equitable,

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and proper.

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DATED: June 1, 2014

JOSHUA R. FURMAN LAW CORP.

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By:

/s/ Joshua R. Furman
JOSHUA R. FURMAN
Attorney for Plaintiffs,
Citizens for Free Speech, LLC &
Michael Shaw

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Complaint

DEMAND FOR JURY TRIAL

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Plaintiffs hereby demand a trial by jury.

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DATED: June 1, 2014

JOSHUA R. FURMAN LAW CORP.

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By:

/s/ Joshua R. Furman
JOSHUA R. FURMAN
Attorney for Plaintiffs,
Citizens for Free Speech, LLC &
Michael Shaw

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Complaint