Herson et al v. City of Richmond

Filing 32

STIPULATION AND ORDER re 28 Stipulation filed by Jeffrey Herson, City of Richmond, East Bay Outdoor, Inc. Signed by Judge Phyllis J. Hamilton on 9/10/09. (nah, COURT STAFF) (Filed on 9/10/2009)

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W KERR ญญญญญ & ญญญญญ
LLP

JAMES M. WAGSTAFFE (95535) [e-mail] MICHAEL VON LOEWENFELDT (178665) [e-mail] MICHAEL NG (237915) [e-mail] KELLY A. CORCORAN (260268) [e-mail] KERR & WAGSTAFFE LLP 100 Spear Street, Suite 1800 San Francisco, CA 94105ญ1528 Telephone: [phone] Fax: [phone] Attorneys for Plaintiffs JEFFREY HERSON AND EAST BAY OUTDOOR, INC. RANDY RIDDLE (121788) CITY ATTORNEY KEVIN SCOTT DICKEY ( 184251) CHIEF DEPUTY CITY ATTORNEY CITY OF RICHMOND 450 Civic Center Plaza Richmond, CA 94804-1630 Telephone: [phone] Facsimile: [phone] randy [e-mail] ANDREW W. SCHWARTZ (87699) MATTHEW D. ZINN (214587) WINTER KING (237958) SHUTE, MIHALY & WEINBERGER LLP 396 Hayes Street San Francisco, CA 94102 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail]

Attorneys for Defendant CITY OF RICHMOND UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JEFFREY HERSON, an individual; EAST BAY OUTDOOR, INC., a California corporation, Plaintiffs, vs. CITY OF RICHMOND, a charter city, Defendant. Case No. 3:09-cv-02516-PJH STIPULATION REQUESTING CLARIFICATION/ RECONSIDERATION OF PARAGRAPH 4 OF AUGUST 17, 2009 ORDER Honorable Phyllis J. Hamilton

AGSTAFFE

Case No. 3:09-cv-02516-PJH

STIPULATION RE CLARIFICATION/RECONSIDERATION

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W KERR ญญญญญ & ญญญญญ
LLP

On August 5, 2009, the Court denied the plaintiffs' motion for preliminary injunction. This stipulation is not intended to affect that denial, and does not constitute a waiver or alteration by either side of their position on that motion. On August 17, 2009, the Court issued a further order reiterating its denial of the motion for preliminary injunction and dismissing Plaintiffs' claims in their entirety. This stipulation is not directed at the Court's rulings on Plaintiffs' prospective relief claims in either the August 5 or August 17 orders. At the hearing on the motion for preliminary injunction, the parties both noted that the repeal of the challenged ordinance and the enactment of the temporary moratorium ordinance does not moot the plaintiffs' damage claims as originally pleaded in the case. See Outdoor Media Group v. City of Beaumont, 506 F.3d 895, 902-03 (9th Cir. 2007). Only the claims for prospective relief are affected by the statutory change. Moreover, at the hearing on the motion for preliminary injunction, the Court appeared to agree with the parties that plaintiffs could wait until after the enactment of the forthcoming sign ordinance intended to replace the moratorium ordinance before filing a supplemental complaint. The Court stated that the parties could meet and confer on an appropriate schedule. The parties have reviewed the Court's August 17, 2009 Order and respectfully submit that it contains two rulings inconsistent with the above. First, the Court appears to have sua sponte dismissed the entire case as moot. Such relief was not sought by defendants, who concede that under current Ninth Circuit law the damage claims are not moot. The damage claims should not have been dismissed based on the repeal of the challenged ordinance and the enactment of the temporary moratorium ordinance. Second, the Court set a date to file an amended complaint by September 18, 2009. The City will not have enacted its new Sign Ordinance by that time. /// /// /// /// /// 1
Case No. 3:09-cv-02516-PJH STIPULATION RE CLARIFICATION/RECONSIDERATION

AGSTAFFE

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W KERR ญญญญญ & ญญญญญ
LLP

Accordingly, the parties respectfully request the following relief: 1. That the Court's August 17, 2009 order be revised nunc pro tunc so that

plaintiffs' claims for damages are not found to be moot and are not dismissed. 2. That the Court allow the plaintiffs until 30 days after the City enacts a

replacement Sign Ordinance to supplement and amend their complaint. DATED: August 19, 2009 KERR & WAGSTAFFE LLP

By ______/s/________________________________ Michael von Loewenfeldt Attorneys for Plaintiffs JEFFREY HERSON AND EAST BAY OUTDOOR, INC.

DATED: August 19, 2009

SHUTE, MIHALY & WEINBERGER, LLP

By ____/s/___________________________________ Matthew D. Zinn Attorneys for Defendant, CITY OF RICHMOND

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Case No. 3:09-cv-02516-PJH STIPULATION RE CLARIFICATION/RECONSIDERATION

AGSTAFFE

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[PROPOSED] ORDER Pursuant to stipulation, and good cause appearing, IT IS HEREBY ORDERED THAT: 1. The Court's August 17, 2009 order is revised nunc pro tunc so that plaintiffs'

claims for damages are not found to be moot and are not dismissed. 2. Plaintiffs shall have until 30 days after the City enacts a replacement Sign

Ordinance to supplement and amend their complaint. IT IS SO ORDERED.

UNIT ED

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W KERR ญญญญญ & ญญญญญ
LLP

9/10/09 DATED: _____________________

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AGSTAFFE

Case No. 3:09-cv-02516-PJH

[PROPOSED] ORDER

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W KERR ญญญญญ & ญญญญญ
LLP

I, Michael von Loewenfeldt, am the ECF User whose ID and password are being used to file this Stipulation and Proposed Order re Clarification/Reconsideration of Paragraph 4 of the August 17, 2009 Order. In compliance with General Order 45, X.B., I hereby attest that Matthew D. Zinn of Shute, Mihaly & Weinberger, LLP, Attorneys for the City of Richmond, has concurred in this filing.

DATED: August 19, 2009 KERR & WAGSTAFFE LLP By _____s/___________________________________ Michael von Loewenfeldt Attorneys for Plaintiffs JEFFREY HERSON AND EAST BAY OUTDOOR, INC.

AGSTAFFE

Case No. 3:09-cv-02516-PJH

STIPULATION RE CLARIFICATION/RECONSIDERATION