*1 OUTDOOR, INC., VALLEY corporation,
a California
Plaintiff-Appellant, RIVERSIDE, a California OF
CITY corporation; Stephen 1-50,
Whyld, individual; Does, De
fendants-Appellees.
No. 04-55029. Appeals,
United States Court of
Ninth Circuit. 20Q5.
Argued and .Submitted Oct. April
Filed *2 Disner,
Eliot G. Van Etten Suzumoto & LLP, Monica, California, Becket ar- Santa gued plaintiff-appellant. for the cause Menthe, Darrel C. Van Etten Suzumoto & LLP, Monica, California, Becket Santa was on the briefs. Coates, Martin, Greines,
Timothy T. LLP, Angeles, Stein & Richland Los Cali- fornia, argued cause for defendant- Priamos, appellee. Gregory P. Attor- Brown, ney, and James E. Office of the Riverside, California; Attorney, Mi- Bell, Bell, Watase, chael A. Orrock & Riv- Diamond, erside, California; and Alan Martin, LLP, Greines, & Richland Stein California, Angeles, were on the brief. Los FRIEDMAN,* Before: O’SCANNLAIN, PAEZ, Circuit Judges.
O’SCANNLAIN, Judge: Circuit to a billboard this ordinance, a bill- we must decide whether vari- company board has to assert * Friedman, designation. Cir- Daniel M. Senior United States Circuit, Judge sitting by cuit the Federal ban), exceptions
ous claims under the First and Fourteenth content-based prohibition of the U.S. Constitution. which included the Amendments a freeway. within 750 feet of I lawsuit, days filing Ten after J. *3 Outdoor, (“Valley”) Inc. leases Stephens, president Valley, Keith at- n advertising space. Though it outdoor permit tempted to tender ma- throughout owns billboards Southern Cali- at filing terials but was rebuffed fornia, particular concern this case because, told, City window he was still are five which it erected within billboards would not billboards within 750 feet Riverside, City California. 20, 2000, freeway. By February of a Val- ley completed construction of all five bill-
A 25, February Valley again boards. On attempted for the required per- having applied Without to do time, so, City accepted mits. This Valley began pour the foundations 8, applications, city if January for five billboards on 2000. A and officials stated that provision necessary then-effective of the Riverside additional information became Municipal prohibited provide by filing Code billboards with- could a “correc- freeway. in 750 feet of a See RIVER- tion letter.” SIDE, CAL., MUN. CODE Valley’s applications pend- While were (enacted 1983). 19.76.020(B)(2)(a)(vii) § City, ing, impelled by the Outdoor generally (“Original See id. ch. 19.76 Ordi- decision, Group Media enacted a new ordi- nance”). Valley concedes that each of the 2, nance with an date of effective March five at billboards issue is located within (“Amended Ordinance”), restoring Freeway. 100 feet of Before com- prohibition sign- on commercial off-site construction, pleting Valley commenced age. Among things, other the Amended 10, against City January this action re-adopted freeway Ordinance the 750-foot 2000, initially contending, under 42 U.S.C. exclusion zone.1 1983, Original in- Ordinance fringed upon Valley’s First Amendment - Subsequently, Valley received a letter rights. 1, City, 2000, from the dated March which rejected again permit applications. its later, however, days
Three the Califor- (1) rejection The reasons stated for were: nia Appeal, litigation, Court of in unrelated provided imprecise had identifi- issued a invalidating provi- decision certain cation of the color and materials used for Original sions of the Ordinance. See sign uprights; Riverside v. Media Group, Outdoor Inc., provide specific No. E022351 failed to street (Cal.Ct.App.2000). Spe- addresses cifically, sign the court for two struck down Sections locations. Rather than re- 19.76.020(1)(C)(a letter, off-premises quest ban on bill- correction returned boards) (various 19.76.020(2)(A)-(N) payment. and fee yet 1. We again note that the at has rewrit- the time of the events at issue here. We zoning governing ten the opportunity section of its code leave to the district court the Riverside, Cal., signs. provisions See Ordinance 6804 consider whether the new code 14, (June 2005), (which http://www.nver- brought available at were not to our attention sideca.gov/pIanning/applicationforms/O- parties) disposition have relevance to indicated, Alaska, 6804-signs.pdf. Unless otherwise of the merits. SeeJacobus v. (9th Cir.2003). appeared we cite to the code as it 1102-04 29, 2002, the district court de- April issued a On On March parties’ nied both cross-motions for sum- for each billboard. “Stop Notice” Work 21, 2000, order, mary judgment. court Also, by letter dated March comply held as a matter of law that sections signs “[t]he explained “d[id] regulate of the amended ordinance which of the various non-con- one or more with City’s off-premises are unenforceable criteria of the physical tent based at ac- including things against such billboards issue sign ordinance area, prior tion which were erected to March sign height proximity sign ” added). added). result, (emphasis 2000” As a Val- (emphasis freeway ley’s governed only by billboards are those five to Re- subsequently “Notice[s] issued relied, Original in sections of the left explicitly Ordinance Signs,” move *4 standing Group reen- after the Outdoor Media on the substantive restrictions part, City appeal decision. The does not by the Amended Ordinance. acted ruling. B Complaint,
In Amended its Third 2 declaratory Original relief that the seeks trial, solely Valley’s At based on failure violate the First and Amended Ordinances required for and to obtain the by drawing Amendments and Fourteenth construction on denying distinctions and content-based issue, City the five billboards at filed a law; injunctive of the re- equal protection motion in limine to exclude all evidence City enforcing from prevent lief to City “improperly, unlawfully to re- Original and Amended Ordinances unconstitutionally handled or refused to billboards; de- quire Valley to remove its process permit ... claratory relief that the ordinances effect allegedly City by plain- submitted taking; damages Fifth Amendment tiffs,” granted which the district court of under 42 U.S.C. 1983 for violation ruling In a from the October actions Valley’s rights constitutional bench, explained plaintiff the court that a “under color of law.” taken constitutionality of may challenge in provision
one code where it is “independently en- violation another Valley vio- provision. forceable” Because 10, 2000, July response in On by be- City’s permit provisions lated the subject City’s motion to dismiss for lack of applying without for a ginning construction jurisdiction, the district court dis- matter standing, no the court stat- permit, had posed Valley’s argument Origi- ed, provisions substantive nal violated the First Amend- Ordinance of the billboard ordinances. court held that ment. The district 4, 2003, the district court constitutionality Original of the Ordinance On November issue; unconstitutionality granted judgment motion for was a moot Having granted the mo- already determined in Outdoor a matter law. had been and, case, excluding tion in limine all critical evi- Group, any Media dence, legally the court found “no suffi- repealed had it. The district court con- evidentiary in- cient basis for reasonable temporaneously permanent issued a Outdoor, applying jury plaintiff to find for junction forbidding the 50(a)(2). The court Inc.” FED. R. CIV. P. provisions Original invalidated Valley’s motion for a subsequently denied against Valley. Ordinance zone, freeway, exclusionary trial, Valley timely filed its notice the 750-foot new Amendment; under the First and claims appeal.2 arbitrary and arising allegedly from the unlawful manner in which the refused II Valley’s process permit applications. grant of reviewing the district court’s City, note the com- judgment for the on a standing We consider proceed- which this case plex procedure See, claim-by-claim e.g., basis.3 Donahue judgment as granted ed: (1st Boston, evidentiary of an a matter of law because Cir.2002) (citations omitted). City ar applica- on an ruling which the court based gues standing across the lacks standing doctrine. We unravel this tion of began board because it construction before controversy sequence, consid- the same obtaining required permits. to as- ering whether claims; whether the district court sert granting the mo- its discretion abused limine; finally, whether Orig first claim is that the judgment entitled to as a matter facially inal and Amended Ordinances are *5 of law. invalid because their substantive restric tions, freeway such as the 750-foot exclu
A
zone,
sion
violate various First Amend
Valley
appeal,
principles. Valley
On
contends that
has ment
contends that
standing
proceed
standing
by
to
with claims that fall
is not affected
its failure to
categories:
under one of two
facial chal-
obtain
construc
provisions
to
tion
lenge
attempt
the substantive
of the
because
to do so would
Ordinances,
Original
e.g.,
and Amended
have been futile.
Despite
scheduling
injunction, Valley sought
our
of a mediation con-
state trial court's
to
14, 2004,
April
publication
ference for
filed an
resume the
of commercial adver-
tising
pending
on its billboards
our decision.
action
state
abatement
in
California
court.
8,
City responded
arguing
The
on March
that
merely
injunc-
trial court there
issued an
The
stay
our
order somehow revived the state trial
Valley
displaying
prohibiting
com-
preliminary injunction.
court’s invalidated
advertising.
City appealed,
mercial
The
and
requested
further
that we confirm
Appeal
Court of
reversed and
California
Valley
subject
prior
"that
remains
to the
in-
remanded with instructions that
the trial
junction foreclosing
placing
it from
new com-
injunction requiring Valley
court enter an
to
copy
signs,"
mercial
on the
or that we lift the
remove the billboards to their foundations.
stay
necessary
order insofar as
to enable that
Supreme
The California
Court denied review.
Valley
restriction.
and the
each filed
injunction
required
Because the
would have
14,
responses
respective-
dated March 13 and
billboards,
4,
January
removal of the
ly.
light
opinion today,
deny
of our
we
as
granted
stay
proceedings
of state court
requests
stay
moot all
clarification
preserve
jurisdiction.
in order to
our
See 28
order.
2283;
1651(a),
Sandpiper Village
§§
U.S.C.
Ass’n,
Corp.,
Inc. v.
Condo.
Louisiana-Pacific
Group,
3. Virtual Media
Inc. v.
San
831,
(9th Cir.2005);
428 F.3d
843-44
Bennett
Mateo,
(N.D.Cal.2002),
held Original of the stantive restrictions Valley. The against Amended Ordinances also contends that has Ordinance is irrelevant because
Original category to assert the second restrictions were invalidat its substantive challenges City’s authori claims: its the district by Grcmp; ed Media Outdoor ty to or to late-filed already court has determined its mootness discretion, complete at its enjoined its application. this case City’s allegedly arbitrary well as the con Ordinance, Further, the Amended as a exercising duct that discretion law, apply Valley’s not matter of does Valley argues case.5 “[i]t im signs, prior installed proper to discard the evidence the rec Ordinance’s effective date. Amended’s application” permit ord of selective Thus, missed the parties both have obvious ting requirements, agree. and we point: and most relevant because neither standing, Valley To establish must provisions Original invalidated of the (1) that there is an actual or immi show: entirety of Amend Ordinance nor the injury, particu nent which is concrete and against ed can be enforced Ordinance (2) larized, conjectural; hypothetical not case, Valley in this lacks stand billboards injury fairly traceable ing validity the constitutional actions; likely, that it is Virgi restrictions. See substantive merely speculative, injury will be Ass’n, Inc., Am. nia v. Booksellers redressed decision. See favorable 108 S.Ct. 98 L.Ed.2d U.S. Wildlife, 504 Lujan v. U.S. *6 of Defenders (1988).4 555, 560-61, 112 119 L.Ed.2d S.Ct. Thus, (1992); properly held Soc’y, Nat’l Audubon Inc. v. (9th Cir.2002). Davis, challenge Valley standing that lacked to reason, Valley standing stating City the that the would 4. For the same lacks challenge to the Amended Ordinance under proposed the were materials because the California Constitution. freeway. City The located within 750 feet of Valley standing ap- Valley's attempt We also note that even if denied second to submit City's purported application because, because of the according plication materials Ordinance, the Amended the claim became papers imprecisely City's explanation, court held that moot when district gray the shade of used on bill- stated apply. ordinance does not Dream Palace Cf. they at which boards and the street addresses County Maricopa, 384 F.3d this were located. Whereas deficiencies of (9th Cir.2004) (holding possibil- that there is a meager variety typically remedied were ity injury government of immediate if the is letter, City simple re- correction here process amending "in the so that [the law] application materials and instruct- turned challenged pre- restrictions will to Perhaps Valley apply anew. not coinci- ed to businesses”). existing rejection only dentally, City penned this Valley points to circumstantial evidence that day prior to the Amended Ordinance's one matter, suggests, as a factual an illicit motiva- permits,” granting effective date. "Instead of actions. At the time of tion behind concludes, kept "the made sure it Valley's attempt to itself of the Riverside avail pass a the air until it could new the ball in Municipal permit applica- Code’s "late-filed” statute, employ to which it could then sign process, City’s original ordi- Opening Valley.” Appellant's to Nonetheless, a nance had been invalidated. Brief at 16. city rejected Valley's application official provisions, reliance on one of the invalidated reasons, constitutionally suspect ag- prevent to seeks billboards, such, and, applica- party may as maintaining grieved specific first two in that con- regulation not contest the tion of the parties do text”). issue is redressabil- claim. precisely crucial This is elements. The Valley’s commencing construction ity. permits does not applying required for the that first to note important It is “self-help,” as the disqualifying constitute contains a de- ordinance City’s billboard concluded, actually gives court but district by which the will procedure tailed controversy. very case or rise to this filed after the be- process application Thus, that ruling court erred the district construction, ie., a “late-filed” ginning of constitu- standing lacked to assert RIVERSIDE, permit application. See City’s conduct tional claims related to the 19.76.210(E).6 CAL., CODE MUN. process to the late-filed refusing Notwithstanding procedure and Val- applications. therewith, re- ley’s compliance process Valley’s permit applica- fused B tions, and continues to assert standing simply per- because it filed lacks Valley has Having determined that mit after construc- extent, next foregoing essence, then, complete, it claims tion. on the ruling the district court’s consider discretionary authority dispose of a late- excluding motion in limine evidence any given fit in application filed as sees course, noted, the City’s conduct. Of case. unbridled discretion under its asserts municipal code to decide which late-filed City possesses authority
If
indeed
applicants get
to erect billboards
filing,
late
seek abatement
the case
such, there exists a
which do not. As
invalidating
a court order
a substan-
then
discretionary authority
claim that
tenable
such as the 750-foot free-
tive restriction
activity
expressive
nature over
way perimeter
would not redress
Amendment.
facially violative of the First
injury.
reversing
But an
alleged
order
Dist., 534
Chicago
Thomas v.
Park
City’s allegedly arbitrary treatment of Val- See
316, 323, 122 S.Ct.
151 L.Ed.2d
ley’s
rejecting
late-filed
the U.S.
*7
(2002); Young City
Valley,
v.
Simi
City’s authority
accomplish
to do so would
783
of
(9th Cir.2000);
See,
IDK,
807,
216 F.3d
819
Desert
e.g.,
that result.
Inc. v. Clark
(9th Cir.1988)
Adver.,
1185,
County,
F.2d
1196
Inc. v.
Moreno
836
Outdoor
of
(9th
814,
government
Valley, 103 F.3d
818-19
Cir.
(noting that when the
“re-
1996).7
claim, the evidence of
arbitrary
vokes or denies licenses for
Given this
Yamaguchi
Late-filing applicants
per
complaint,
v. United States
6.
are not deemed
se
the
see
Force,
1475,
ineligible
Dep’t
F.3d
1481
permits
inspec-
to receive the
the Air
109
of
billboard;
(9th Cir.1997) (holding
complaint
necessary
that
tions
to construct a
only provide
need
“fair notice” to defendant
only
they
pay
that
ordinance indicates
must
asserted);
RIVERSIDE, CAL.,
contemplated
of the claim
in
penalty
modest
fee.
order,
pretrial
19.76.210(E)(l)-(3).
conference
see United States v.
§
MUN. CODE
More-
Circle,
882,
over,
Nat'l Bank
652 F.2d
First
provided explicitly
45-day
the code
for a
of
(9th Cir.1981) (holding that such orders are to
grace period
sign
within
could
builders
liberally
and that an issue is
be
construed
necessary
applications.
file
Id.
sufficiently preserved
"implicit-
19.76.210(F).
if it is at least
text); preserved
ly”
by
in Val-
embraced
limine,
record,
ley's
proof
Upon
offer of
on the motion in
review of the
we are satisfied
Lui,
844,
argument
sufficiently
v.
941 F.2d
that this
was
raised in
see United States
rejection
handling Valley’s permit applications
improper
of
is
City’s allegedly
govern-
is indeed rele-
relevant because
is indicative of
Valley’s permit applications
Quite simply, goes
Equal
to whether the mental conduct that the
Protection
vant.
may
statutory authority
of its
to Clause
forbid.8
City’s exercise
late-filed
for ex-
grant or to
sum,
therefore,
activity
arbitrary.
was
pressive
granting
abused its discretion in
the mo-
tion in limine because its exclusion of the
argued
has also
that
predicated upon
evidence Was
an inaccu-
right
equal protection
to
City violated
rate
doctrine. See
arbitrarily, maliciously,
dishonestly
Village
Dep’t
Developmental
Richard S. v.
applications.
denying
permit
See
(9th
Servs.,
1080,
317 F.3d
1085-86-
Cir.
Olech,
562,
v.
528 U.S.
Willowbrook
2003). Evidence of the manner in which
1073,
was
Because the district court erred in
having
permit application during
filed a
limine,
granting the motion in
it also
in
gap
legally
which the
wrongly granted
City’s
motion for
powerless
prevent
placement
Val
judgment
Viewing
as a matter of law.
ley’s signs
proximity
freeway.
light
evidence
most favorable to
Macrane,
See Esmail
53 F.3d
Valley (including the evidence which
(7th Cir.1995)
(holding that
govern
excluded),
court wrongly
district
the chal
may
engage
spiteful
ment
“a
effort
lenge
City’s allegedly unguided
‘get’
wholly
for
[an individual]
reasons
arbitrary
denial of the late-filed
objec
any legitimate
unrelated to
state
applications presents a sufficient basis
tive”).
jury
A
could find that
differen
upon
juror
which a reasonable
could find
applica
tial treatment of
late-filed
Inc.,
Valley.
El-Hakem v.
See
BJY
may
wholly
have
irrational and
been
(9th Cir.2005).
1068, 1072
arbitrary,
equal protection
violation of
Penman,
principles.
Armendariz v.
See
Ill
(9th Cir.1996) (en
1326-27
banc);
aim,
Lockary,
adjacent freeways.” appropriate CAL., through compro- 19.76.005. Never- could have been settled MUN. CODE theless, ultimate whatever success mise. excluded merits, on the evidence situation, however, The is not sim- limine clearly to the determina- relevant City’s includes ple. permit procedure The Finding otherwise based
tion of this case. may grant it a provisions by detailed which standing, application on its of the rules begun permit after construction has been abused its discretion completed. Valley attempted or even been motion in limine and in ren- granting the procedure, to invoke that but of law. judgement as a matter dering rejected Valley’s attempt to obtain belated part AFFIRMED in and REVERSED suggest that at permit grounds a least for trial pro- and REMANDED part not already had decided opinion. ceedings consistent with this retroactively Valley’s authorize billboards. City’s returning The stated reasons for FRIEDMAN, Judge, concurring Circuit permit application, second after construc- in the result: completed, tion of the billboards had been I Although disagree with some of the improperly were that had identified opinion, agree in its I court’s statements up- the color and material used for the judgment for that the district court’s rights given precise and had not street stand, City as a matter of law cannot and for two of the billboards. As addresses that the case should be remanded to that suggests in opinion, the court its these proceedings. court for trial appropriate deficiencies seem more to be through dealt a letter than with correction City requires beginning that before by rejecting application. billboard, the construction of a one must permit. Valley a apply for and receive did I concur in the result in this case be- Instead, began not do construction so. explication cause I think that the further and laid concrete foundations for five bill- development and of the facts that boards. After this work had been done opinion apparently contemplates court’s a permit, sought permit without then a final disposi- would facilitate the ultimate City, rejected request. from the its complex complicated of this hope case. I that evidence would be de- involved, If all that were the case (1) veloped addressing these items: Val- would clear simple. outcome be Be- reasons, ley’s any, if seeking for not complied cause had not with the permit before construction of City’s permit requirement and no offered (other the billboards than its claim that otherwise, explanation, reasonable futile); application such would have been so, to do City justifiably its failure City’s apparently reasons for rejected Valley’s belated efforts to cure its considering the merits of ret- noncompliance by retroactively attempt request permit deny- roactive for a or for permit. Although Valley to obtain' a now (other ing that request than the that applying permit states for a apparent position that it has absolute dis- starting construction would have fu- been grant cretion to without tile, way knowing there is no what the reason). stating if would have done *9 If Valley good been filed. had made a
faith endeavor obtain a construction, perhaps the differ-
ences between and the over