United States District Court, S.D. California
September 29, 2005.
GET OUTDOORS II, LLC, a Nevada Limited Liability Company, Plaintiff,
CITY OF CHULA VISTA CALIFORNIA, Defendants.
The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER RE: PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT
[Doc. No.'s 46; 50]
Plaintiff Get Outdoors II, LLC ("Plaintiff" or "Get Outdoors")
filed a complaint alleging that Defendant City of Chula Vista,
California's ("Defendant" or "Chula Vista") sign ordinance is
unconstitutional and should be struck down in its entirety.
Plaintiff applied to erect nine billboards in Chula Vista and
argues that "[because] of the substantial constitutional defects
contained in the sign ordinance, this Court should exercise its
equitable powers and order the City to allow Get Outdoors to
erect its signs." Plaintiff's Mem. of Points & Authorities in
Support of Plaintiff's Motion for Partial Summary Judgment ("Pl.
Mot."), p. 1. Chula Vista argues that its sign ordinance is
constitutional under both Supreme Court and Ninth Circuit
precedent. However, Chula Vista urges the Court to grant summary
judgment on grounds that Plaintiff's suit is now moot and that
Plaintiff lacks standing. Following initiation of this lawsuit, Chula Vista enacted
urgency legislation and later enacted a permanent change to its
sign ordinance. Significantly, Chula Vista added (1) a "message
substitution clause" that permits noncommercial speech on any
sign currently displaying commercial speech in Chula Vista; and
(2) new text which restates the ban on new billboards.
The parties each now move for summary judgment. The Court has
entertained extensive briefing on the issues and for the reasons
set forth below GRANTS Chula Vista's motion for summary
judgment and DENIES Plaintiff's motion for summary
II. Factual Background
Get Outdoors seeks to post signs in Chula Vista for the purpose
of communicating commercial and noncommercial messages regarding
products, services, ideas, candidates, issues, events, and other
topics. Declaration of W. Benham, ¶ 3 (attached to Plaintiff's
Lodgment in Support of its motion for preliminary injunction). On
June 5, 2003, Get Outdoors, through William Benham, presented to
Chula Vista applications for nine new billboards. John Schmitz'
Declaration, ¶ 6. On July 1, 2003, Chula Vista Principal Planner
John Schmitz sent letters to Get Outdoors informing Get Outdoors
that its applications were incomplete. Schmitz' Decl., ¶ 8.
According to Mr. Schmitz, Chula Vista has not received any
supplemental information from Get Outdoors. Id.
On July 8, 2003, the City of Chula Vista adopted revisions to
chapter 19 of the Chula Vista Zoning and Specific Plans
(sometimes referred to as the "sign ordinance"), as an urgency
ordinance. The Chula Vista City Council also adopted the same
revisions by the standard method (i.e. introduction at one
meeting, second reading at next meeting, effective date 30 days
later). The new sign ordinance contains a "message substitution"
provision that provides: Subject to the land owner's consent, a noncommercial
message of any type may be substituted for any duly
permitted or allowed commercial message or any duly
permitted or allowed noncommercial message; provided,
that the sign structure or mounting device is legal
without consideration of message content. Such
substitution of message may be made without any
additional approval or permitting. This provision
prevails over any more specific provision to the
contrary within this chapter. The purpose of this
provision is to prevent any inadvertent favoring of
commercial speech over noncommercial speech, or
favoring of any particular noncommercial message over
any other noncommercial message. This provision does
not create a right to increase the total amount of
signage on a parcel, nor does it affect the
requirement that a sign structure or mounting device
be properly permitted.
Chula Vista, CA., Municipal Code 19.60.050.C. On July 28, 2003,
Plaintiff filed its original complaint. On August 26, 2003, Chula
Vista City Council approved a resolution setting policies for
signs on city-owned property and approved on second reading the
text for the new sign ordinance. On September 25, 2003, the new
sign ordinance took effect.
III. Procedural Background
On September 19, 2003, Plaintiff filed a motion for a
preliminary injunction. On February 12, 2004, this Court filed an
Order denying Plaintiff's motion for a preliminary injunction.
Get Outdoors and Defendant have each filed motions for summary
judgment in this case. On February 3, 2005, the Court took the
parties' cross-motions under submission without oral argument.
Thereafter, both parties filed numerous notices of subsequent
legal authority, each of which the Court has considered.
Plaintiff moves for partial summary judgment on the grounds
that Chula Vista was enforcing unconstitutional restrictions on
signs at the time Plaintiff submitted nine sign applications and
that Chula Vista should be ordered to allow the signs to be
posted. Plaintiff argues that it has standing to challenge Chula
Vista's sign ordinance based on the Supreme Court's decision in
Metromedia v. City of San Diego, 453 U.S. 490 (1981). Pl's
Mot., p. 4. Chula Vista also moves for summary judgment. Chula
Vista argues that it is entitled to summary judgment on grounds
that (1) the case is moot because Chula Vista enacted a new sign
ordinance and the one Plaintiff applied under is no longer in
effect; (2) a ban on new billboards is constitutional; (3)
Plaintiff does not have vested rights under the prior sign ordinance; (4) Plaintiff's applications would have been rejected
based on content neutral rules; and (5) Plaintiff lacks standing.
A. Legal Standard
Summary judgment is appropriate under Rule 56 of the Federal
Rules of Civil Procedure where the moving party demonstrates the
absence of a genuine issue of material fact and entitlement to
judgment as a matter of law. Fed.R.Civ.P. 56(c); See also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is
material when, under the governing substantive law, it could
affect the outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact
is genuine if "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
A party seeking summary judgment always bears the initial
burden of establishing the absence of a genuine issue of material
fact. Celotex, 477 U.S. at 323. The moving party may meet this
burden in two ways: (1) by presenting evidence that negates an
essential element of the nonmoving party's case or (2) by
demonstrating that the nonmoving party failed to make a showing
sufficient to establish an element essential to that party's case
on which that party will bear the burden of proof at trial. Id.
at 322-23. If the moving party fails to discharge this initial
burden, summary judgment must be denied and the court need not
consider the nonmoving party's evidence. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 159-60 (1970).
If the moving party satisfies its initial burden, the nonmoving
party cannot defeat summary judgment merely by demonstrating
"that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); See also Anderson, 477 U.S. at 252
("The mere existence of a scintilla of evidence in support of the
nonmoving party's position is not sufficient."). Rather, the
nonmoving party must "go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that
there is a genuine issue for trial." Celotex, 477 U.S. at 324
(quoting Fed.R.Civ.P. 56(e)) (internal quotations omitted). In ruling on a motion for summary judgment, "[t]he district
court may limit its review to the documents submitted for
purposes of summary judgment and those parts of the record
specifically referenced therein." Carmen v. San Francisco
Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001).
Therefore, the court is not obligated to "scour the record in
search of a genuine issue of triable fact." Keenan v. Allen,
91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined
Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). The court must view
all inferences drawn from the underlying facts in the light most
favorable to the nonmoving party. Matsushita, 475 U.S. at 587.
"Credibility determinations [and] the weighing of evidence . . .
are jury functions, not those of a judge, [when] he [or she] is
ruling on a motion for summary judgment." Anderson,
477 U.S. at 255.
When parties submit cross-motions for summary judgment on the
same claim or issue, each motion must be considered on its own
merits and analyzed under Rule 56. See Fair Housing Council of
Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136
(9th Cir. 2001). The court must consider the appropriate
evidentiary material identified and submitted in support of both
motions, and in opposition to both motions, before ruling on the
motions. Id. That both parties assert that no genuine issues of
material fact exist does not vitiate the court's responsibility
to determine whether disputed issues of material fact are
present. Id. (quoting United States v. Fred A. Arnold, Inc.,
573 F.2d 605, 606 (9th Cir. 1978).
Before reaching the constitutional issues raised by Plaintiff,
this Court must first resolve the justiciability issues raised by
Chula Vista, the first of which is whether Plaintiff's case is
now moot. See North Carolina v. Rice, 404 U.S. 244, 246
(1971) (resolution of the question of mootness is essential if
"federal courts are to function within their constitutional
sphere of authority"). Chula Vista argues Plaintiffs failure to
submit permit applications which conform to the current sign
ordinance means the entire case is moot. Defendant's Memorandum
of Points & Authorities In Support of its Motion for Summary
Judgment ("Def's Mot."), p. 10. Plaintiff argues that Chula Vista
cannot establish mootness because it failed to "substantively
change the majority of the challenged provisions." Pl. Mot., p.
14. "Mootness is like standing, in that if it turns out that
resolution of the issue presented cannot really affect the
plaintiff's rights, there is, generally speaking, no case or
controversy for the courts to adjudicate; no real relief can be
awarded." Smith v. University of Washington Law School,
233 F.3d 1188, 1193 (9th Cir. 2000). An action is moot where the
issues presented are no longer "live" or when the parties lack a
cognizable interest in the outcome. Jacobus v. Alaska,
338 F.3d 1095, 1102 (9th Cir. 2003). For instance, in many cases a case
becomes moot when a challenged law is repealed or expires. See
Burke v. Barnes, 479 U.S. 361, 363 (1987) (bill expired during
pendency of appeal, rendering moot the question of whether the
president's pocket veto prevented it from becoming law);
Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414
(1972) (challenged law was repealed while case was on appeal,
rendering the case moot); Princeton University v. Schmidt,
455 U.S. 100, 103 (1982) (case mooted by substantial amendment of
challenged regulations). There are exceptions to the mootness
doctrine. For example, where the defendant's conduct is a wrong
"capable of repetition, yet evading review," or when the
defendant voluntarily ceases an allegedly illegal practice but is
free to resume it at any time. Native Village of Noatak v.
Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994) ("Notak").
1. Amendment or Repeal of Ordinance By Local Government
Chula Vista argues that its amendment of the sign ordinance
moots Plaintiff's challenge because Plaintiff has not filed an
application under the new sign ordinance. Further, Chula Vista
cites Federation of Advert. Indus. Rep. v. City of Chicago,
326 F.3d 924 (7th Cir. 2003) to support its position that the Court
must presume Chula Vista's good faith in amending its sign
ordinance because it is a governmental entity, not a private
actor, and that the voluntary cessation doctrine does not apply
to a government's action to amend or repeal its ordinances.
In support of the former argument, Chula Vista cites to the
Ninth Circuit's decision in Noatak. There, the plaintiffs filed
suit seeking declaratory and injunctive relief challenging the
regulatory expansion of a revenue-sharing program. The Ninth
Circuit found that the case was moot because the statute pursuant
to which the challenged regulations were promulgated had been
repealed. Id. at 1509-11. In reaching its decision, the Ninth
Circuit held that the matter did not fall within the "capable of repetition yet evading
review" exception because there was no reasonable expectation
that the alleged injury would recur because the relevant statute
had been repealed preventing the Commissioner from promulgating
or enforcing regulations under the prior statute. Id. at 1510.
Second, the court held that plaintiffs had not shown that their
injury was of the type that was likely always to become moot
prior to review. Id. The Ninth Circuit further held that the
voluntary cessation exception to mootness did not apply because
"[a] statutory change . . . is usually enough to render a case
moot, even if the legislature possesses the power to reenact the
statute after the lawsuit is dismissed." Id. (citations
omitted) [emphasis added] The court noted that "exceptions to
this general line of holdings are rare and typically involve
situations where it is virtually certain that the repealed law
will be reenacted." Id. at 1510-11. The court found that the
plaintiffs' fear of possible future injury from the state's
retention of an allegedly discriminatory policy did not
constitute a reasonable expectation that the same injury would
The U.S. Supreme Court has also weighed in on this issue. The
Supreme Court has found challenges to legislation moot following
a repeal or amendment of the legislation by the relevant
legislative body. For instance, in Diffenderfer, the Supreme
Court held that an action for declaratory judgment that a
particular Florida state statute relating to taxation of church
property was unconstitutional (as applied to a specific church
parking lot in Miami) was moot due to the repeal of the alleged
offending statute by the legislature. 404 U.S. at 413-14. The
Court further held that case did not meet the criteria for the
"capable of repetition, yet evading review" exception to the
mootness doctrine. Id. at 414. In Lewis v. Continental Bank
Corp., 494 U.S. 472 (1990), the Supreme Court addressed a
declaratory relief action brought by an Illinois bank holding
company challenging Florida statutes that prohibited non-Florida
holding companies from operating industrial savings banks. Id.
at 474 (1990). Following the filing of plaintiff's suit, Congress
amended the Bank Holding Company Act ("the Act"). Id. at
474-76. The changes to the Act permitted states to discriminate
against certain out-of-state banks. Id. at 474. Further, the
amendments to the Act broadened the definition of the term
"bank," thus bringing the plaintiff within the reach of the Act. Accordingly,
the Court found that the amendment in the Act mooted the case.
Id. at 474.
In Princeton University v. Schmid, 455 U.S. 100 (1982), the
Supreme Court addressed a challenge to a university's regulations
regarding speech on its campus. Schmid was arrested and charged
with criminal trespass while distributing political materials on
the campus of Princeton University. Id. at 101. Under
University regulations then in effect, members of the public who
wished to distribute political materials on campus were required
to obtain permission from University officials. Id. Schmid did
not have the necessary permission at the time he distributed
materials. Id. Schmid was tried in municipal court and
convicted of criminal trespass. Id. Later, a de novo trial
was held in the New Jersey Superior Court, Law Division, that
also resulted in conviction. Id. Schmid appealed to the New
Jersey Supreme Court, and Princeton University intervened in the
appeal. Id. The New Jersey Supreme Court reversed the judgment
of conviction. Id. Princeton appealed to the United States
Supreme Court. Id. at 102. The Supreme Court held that the case
was moot because while the case was pending on appeal, Princeton
substantially amended its regulations governing solicitation,
distribution of literature, and similar activities on University
property by those not affiliated with the school. Id. at 103.
Because the regulation was no longer in force, the Court held
that the case had "`lost its character as a present, live
controversy of the kind that must exist if we are to avoid
advisory opinions on abstract questions of law.'" Id. at 103
(citing Hall v. Baals, 396 U.S. 45, 48 (1969)).
In cases where there is evidence that the repeal or
modification of an ordinance by a governmental entity was not
genuine, the Supreme Court has refused to hold the case moot. For
instance, in City of Mesquite v. Aladdin's Castle, 455 U.S. 283
(1982), though the City of Mesquite had repealed the challenged
ordinance, the Court declined to find the case moot because the city had announced to the Court its intention to
re-enact the challenged provision if the case was dismissed.
Id. at 289 n. 11.*fn1 Similarly, repeal of a statute does
not moot a case where a city has already replaced a repealed
ordinance with one that is substantially similar. Northeastern
Florida Chapter of the Assoc. General Contractors of America v.
City of Jacksonville, 508 U.S. 656, 662 (1993).
2. Application to Chula Vista's Actions
The Court finds that the enactment of the new sign ordinance by
Chula Vista moots the instant case. As discussed above, the
action by a governmental body to repeal, modify or otherwise
alter legislation will ordinarily moot a challenge to that
legislation in federal court. See Lewis v. Cont'l Bank Corp.;
Princeton Univ. v. Schmid; Diffenderfer v. Cent. Baptist
Church, Inc.. Only where a repeal or amendment is part of a bad
faith attempt by the government to avoid judicial review or where
the government has enacted a substantially similar law will
mootness be avoided. See City of Mesquite v. Aladdin's
Castle, 455 U.S. 283, 289 n. 11 (1982); Northeastern Florida,
508 U.S. at 662 (1993). Here, Defendant has not presented any
compelling evidence that Chula Vista's enactment of the new sign
ordinance was taken in bad faith or an attempt to avoid judicial
review of its ordinance. The Court does not believe it is
appropriate, in the absence of evidence to the contrary, to
second guess the motives of a legislative body in amending or
modifying an ordinance that may represent an effort to correct
potential constitutional deficiencies in that particular law.
Moreover, unlike the facts in Aladdin's Castle, Plaintiff has
not presented any evidence that Chula Vista intends to reenact
its prior sign ordinance if this case is dismissed. Finally, relying on the Supreme Court's opinion in
Northeastern Florida, Plaintiff argues that Chula Vista's new
sign ordinance is substantially similar to the former ordinance
and that this Court should therefore not dismiss this case on
mootness grounds. Plaintiff argues that Chula Vista has merely
"tweaked its original Sign Ordinance" and that new ordinance does
not differ from the former in any significant respect. Pl's Opp.
Br., p. 11. The Court disagrees. While both the former and the
current sign ordinances regulate billboards in Chula Vista,
including size and height restrictions, the new sign ordinance
departs from the former ordinance in a critical way: the
inclusion of a message substitution clause. The message
substitution clause in the new ordinance dramatically alters the
regulation of non-commercial speech on billboards in Chula Vista.
In particular, the message substitution clause allows for the
substitution of noncommercial copy on any sign without additional
permitting. The Court concludes that the inclusion of the message
substitution clause in the current ordinance prevents the
application of the Northeastern Florida exception to mootness.
C. Vesting Rights
Plaintiff claims vested rights under the version of the Chula
Vista's sign ordinance which was in effect at the time the permit
applications were submitted. Chula Vista argues that Plaintiff
lacks any rights under the prior ordinance because such rights
are controlled by California law and that law grants rights only
upon substantial actual construction in reliance on a validly
issued permit. Def. Mot., p. 18. The Court concludes that
Plaintiff lacks any vested rights under the prior ordinance and
therefore the prior applications do not prevent a finding of
Property rights are determined by state law. Lakeview Dev. v.
City of South Lake Tahoe, 915 F.2d 1290, 1294 (9th Cir. 1990)
(noting that "the `vested rights' doctrine traditionally has been
treated as a doctrine of state law and that the doctrine has
evolved in the state courts"). In California, a party has a
vested right in a permit only once the permit is issued and the
party has performed substantial work and incurred substantial
expense in reliance on the permit. Avco Cmty. Developers, Inc.
v. South Coast Reg'l Comm'n, 17 Cal. 3d 785, 791 (1976);
Davidson v. County of San Diego, 49 Cal. App. 4th 639, 646
(1996). Here, the evidence is undisputed that Plaintiff never received
a permit from Chula Vista for any of its nine applications.
Further, there is no evidence that Plaintiff incurred substantial
expense and performed substantial work in reliance on any such
permit. Accordingly, Get Outdoors does not have any vested rights
under the previous sign ordinance or its applications under that
ordinance. Therefore, Plaintiff lacks any vested rights that
would prevent this matter from becoming moot.
Moreover, to the extent Plaintiff attempts to avoid mootness by
claiming damages under the prior sign ordinance the Supreme Court
has held that:
Where on the face of the record it appears that the
only concrete interest in the controversy has
terminated, reasonable caution is needed to be sure
that mooted litigation is not pressed forward, and
unnecessary judicial pronouncements on even
constitutional issues obtained, solely in order to
obtain reimbursements of sunk costs.
Lewis v. Continental Bank Corp., 494 U.S. 472
, 480 (1972). The
basic dispute over the prior sign ordinance is no longer live and
the Court finds Plaintiff's claims of damages under that
ordinance do not prevent a finding of mootness in this case.
D. The Remaining Issues in the Parties' Briefs
In addition to the issue of mootness, the parties' briefs
discuss at length Plaintiff's standing, whether either the
current or former sign ordinance are (or were) constitutional,
and whether Plaintiff's applications violated height and size
restrictions of the former ordinance. However, as this Court has
determined that a live controversy no longer exists and that the
case is now moot, the Court does not reach the issue of
Plaintiff's standing or whether Chula Vista's current or former
sign ordinance is constitutional. See Firefighter's Local 1784
v. Stotts, 467 U.S. 561, 597 (1984) (Blackmun, J., dissenting)
(a central purpose of mootness doctrine is to avoid an
unnecessary ruling on the merits). V. Conclusion
For the foregoing reasons IT IS HEREBY ORDERED that (1)
Plaintiff's motion for partial summary judgment is DENIED; and
(2) Defendant's motion for summary judgment is GRANTED. The
Clerk of the Court shall enter judgment in accordance with this
IT IS SO ORDERED.
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