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LA Outdoor Advertising, Inc. v. City of Los Angeles

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 19, 2010

LA OUTDOOR ADVERTISING, INC., A CALIFORNIA CORPORATION; AND VALLEY OUTDOOR, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
CITY OF LOS ANGELES, A CALIFORNIA MUNICIPAL CORPORATION AND DOE 1 THROUGH DOE 10, INCLUSIVE, DEFENDANTS
CITY OF LOS ANGELES, A CALIFORNIA CHARTER CITY, COUNTER-CLAIMANT
v.
LA OUTDOOR ADVERTISING, INC., A CALIFORNIA CORPORATION; AND VALLEY OUTDOOR, INC., A CALIFORNIA CORPORATION COUNTER-DEFENDANTS

The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge

NOTE: CHANGES MADE BY THE COURT

[Assigned to the Honorable Alicemarie H. Stotler, Courtroom 10-A]

STATEMENT OF UNCONTROVERTED FACTS AND RELATED CONCLUSIONS OF LAW REGARDING DEFENDANT CITY OF LOS ANGELES'S MOTION FOR SUMMARY JUDGMENT ON SECOND AMENDED COMPLAINT [Fed. Rule Civ. Proc. 56; Local Rule 56-1.] Hearing on MSJ: Date: July 12, 2010 Time: 10:00 a.m. Courtroom: 10-A Trial Date: Vacated

The Court adopts defendant City of Los Angeles's ("City") Statement of Uncontroverted Facts and Conclusions of Law, as modified below, pursuant to Federal Rules of Civil Procedure Rule 56 and United States District Court, Central District of California, Local Rule 56-1, in support of the City's Motion For Summary Judgment on the first, second and third claims for: (1) Declaratory Relief, (2) Injunctive Relief, and (3) Deprivation of Civil Rights, asserted in the Second Amended Complaint, filed by plaintiffs LA Outdoor Advertising, Inc. and Valley Outdoor, Inc.

The following abbreviations refer to the evidence filed or lodged with defendant's motion, as follows: "Blau Dec." Declaration of Steven Blau; "Kumabe Dec." Declaration of Plan Check Supervisor Colin Kumabe; and "SAC" Plaintiffs' Second Amended Complaint, filed October 13, 2008; ("BTS" refers to the bates-stamped page where the referenced evidence is located.)

STATEMENT OF UNCONTROVERTED FACTS ("UF")

Parties

1. Plaintiff, LA Outdoor Advertising, Inc., ("LA Outdoor"), is a California corporation engaged in the business of leasing outdoor advertising space on off-site signs commonly known as billboards.

Evidence: SAC ¶¶ 3, 9, and 10.

2. Plaintiff, Valley Outdoor Advertising, Inc. ("Valley Outdoor"), is a California corporation engaged in the business of leasing outdoor advertising space on off-site signs commonly known as billboards.

Evidence: SAC ¶¶ 4, 9, and 10. (LA Outdoor and Valley Outdoor shall be referred to together as "Plaintiffs").

3. Defendant, City of Los Angeles ("City") is a municipal corporation organized and existing under its charter and the laws of the State of California.

Evidence: RJN Ex 1 at BTS 8 (City Charter, Incorporation.)

Plaintiffs' Proposed New Billboards

By LA Outdoor

(i) 418 North Hoover Street

4. LA Outdoor proposes to erect a new billboard at 418 North Hoover Street (the "Proposed 418 Sign").

Evidence: Blau Dec. at Ex 2, BTS 53.

5. The Proposed 418 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 53.

6. LA Outdoor has no permit for the Proposed 418 Sign.

Evidence: Blau Dec. at ¶ 5.

(ii) 420 West 58th Street

7. LA Outdoor proposes to erect a new billboard at 420 West 58th Street (the "Proposed 420 Sign").

Evidence: Blau Dec. at Ex 2, BTS 54.

8. The Proposed 420 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 54.

9. LA Outdoor has no permit for the Proposed 420 Sign.

Evidence: Blau Dec. at ¶ 5.

(iii) 428 16th Street

10. LA Outdoor proposes to erect a new billboard at 428 16th Street (the "Proposed 428 Sign").

Evidence: Blau Dec. at Ex 2, BTS 55.

11. The Proposed 428 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 55.

12. LA Outdoor has no permit for the Proposed 428 Sign. Evidence: Blau Dec. at ¶ 5.

(iv) 555 152nd Street

13. LA Outdoor proposes to erect a new billboard at 555 152nd Street (the "Proposed 555 Sign").

Evidence: Blau Dec. at Ex 2, BTS 56.

14. The Proposed 555 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 56.

15. The Proposed 555 Sign, when built, is not intended to be above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 15.6-7 (Stephens' Deposition testimony).

16. LA Outdoor has no permit for the Proposed 555 Sign.

Evidence: Blau Dec. at ¶ 5.

(v) 1025 West Washington

17. LA Outdoor proposes to erect a new billboard at 1025 West Washington (the "Proposed 1025 Sign").

Evidence: Blau Dec. at Ex 2, BTS 57.

18. The Proposed 1025 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 57.

19. The Proposed 1025 Sign, when built, is not intended to be above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 16.12-14(Stephens' Deposition testimony).

20. LA Outdoor has no permit for the Proposed 1025 Sign.

Evidence: Blau Dec. at ¶ 5.

(vi) 1102 West Washington

21. LA Outdoor proposes to erect a new billboard at 1102 West Washington (the "Proposed 1102 Sign").

Evidence: Blau Dec. at Ex 2, BTS 58.

22. The Proposed 1102 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 58.

23. The Proposed 1102 Sign, when built, is not intended to be above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 18.6-8 (Stephens' Deposition testimony).

24. LA Outdoor has no permit for the Proposed 1102 Sign.

Evidence: Blau Dec. at ¶ 5.

(vii) 1323 West 12th Street

25. LA Outdoor proposes to erect a new billboard at 1323 West 12th Street (the "Proposed 1323 Sign").

Evidence: Blau Dec. at Ex 2, BTS 59.

26. The Proposed 1323 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 59.

27. The Proposed 1323 Sign, when built, is not intended to be above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 19.16-18 (Stephens' Deposition testimony).

28. LA Outdoor has no permit for the Proposed 1323 Sign.

Evidence: Blau Dec. at ¶ 5.

(viii) 1400 Alameda Street

29. LA Outdoor proposes to erect a new billboard at 1400 Alameda Street (the "Proposed 1400 Sign").

Evidence: Blau Dec. at Ex 2, BTS 60.

30. The Proposed 1400 Sign, when built, is intended to be 54 feet high.

Evidence: Blau Dec. at Ex 2, BTS 60.

31. The Proposed 1400 Sign, when built, is not intended to be above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 25.14-16 (Stephens' Deposition testimony).

32. LA Outdoor has no permit for the Proposed 1400 Sign.

Evidence: Blau Dec. at ¶ 5.

(ix) 1438 Oak Street

33. LA Outdoor proposes to erect a new billboard at 1438 Oak Street (the "Proposed 1438 Sign").

Evidence: Blau Dec. at Ex 2, BTS 61.

34. The Proposed 1438 Sign, when built, is intended to be 54 feet high.

Evidence: Blau Dec. at Ex 2, BTS 61.

35. The Proposed 1438 Sign, when built, is not intended to be more than 80 percent above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 26.2-8 (Stephens' Deposition testimony).

36. LA Outdoor has no permit for the Proposed 1438 Sign.

Evidence: Blau Dec. at ¶ 5.

(x) 1441 Wright Street

37. LA Outdoor proposes to erect a new billboard at 1441 Wright Street (the "Proposed 1441 Sign").

Evidence: Blau Dec. at Ex 2, BTS 62.

38. The Proposed 1441 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 62.

39. The Proposed 1441 Sign, when built, is not intended to be above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 26.15-17 (Stephens' Deposition testimony).

40. LA Outdoor has no permit for the Proposed 1441 Sign.

Evidence: Blau Dec. at ¶ 5.

(xi) 1524 Long Beach Boulevard

41. LA Outdoor proposes to erect a new billboard at 1524 Long Beach Boulevard (the "Proposed 1524 Sign").

Evidence: Blau Dec. at Ex 2, BTS 63.

42. The Proposed 1524 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 63.

43. The Proposed 1524 Sign, when built, is intended to be built partly, but not more than 80 percent, above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 28.2-- 4 (Stephens' Deposition testimony).

44. The total sign area available for signage copy on the Proposed 1524 Sign is intended to equal 1,344 square feet.

Evidence: Blau Dec. at ¶ 5 [14 feet wide X 48 feet long x 2 faces = 1,344 square feet].

45. LA Outdoor has no permit for the Proposed 1524 Sign. Evidence: Blau Dec. at ¶ 5.

(xii) 2002 Burlington Avenue

46. LA Outdoor proposes to erect a new billboard at 2002 Burlington Avenue (the "Proposed 2002 Sign").

Evidence: Blau Dec. at Ex 2, BTS 64.

47. The Proposed 2002 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 64.

48. LA Outdoor has no permit for the Proposed 2002 Sign.

Evidence: Blau Dec. at ¶ 5.

(xiii) 2232 Enterprise Street

49. LA Outdoor proposes to erect a new billboard at 2232 Enterprise Street (the "Proposed 2232 Sign").

Evidence: Blau Dec. at Ex 2, BTS 65.

50. The Proposed 2232 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 65.

51. The Proposed 2232 Sign, when built, is not intended to be above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 32.9-11 (Stephens' Deposition testimony).

52. LA Outdoor has no permit for the Proposed 2232 Sign.

Evidence: Blau Dec. at ¶ 5.

(xiv) 3636 Beverly Boulevard

53. LA Outdoor proposes to erect a new billboard at 3636 Beverly Boulevard (the "Proposed 3636 Sign").

Evidence: Blau Dec. at Ex 2, BTS 66.

54. The Proposed 3636 Sign, when built, is intended to be 54 feet high.

Evidence: Blau Dec. at Ex 2, BTS 66.

55. The Proposed 3636 Sign, when built, is not intended to be more than 80 percent above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 37.6-10 (Stephens' Deposition testimony).

56. LA Outdoor has no permit for the Proposed 3636 Sign.

Evidence: Blau Dec. at ¶ 5.

(xv) 5766 Hollywood Boulevard

57. LA Outdoor proposes to erect a new billboard at 5766 Hollywood Boulevard (the "Proposed 5766 Sign").

Evidence: Blau Dec. at Ex 2, BTS 67.

58. The Proposed 5766 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 67.

59. The Proposed 5766 Sign, when built, is not intended to be above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 45.17-18 (Stephens' Deposition testimony).

60. LA Outdoor has no permit for the Proposed 5766 Sign.

Evidence: Blau Dec. at ¶ 5.

(xvi) 8230 Beverly Boulevard

61. LA Outdoor proposes to erect a new billboard at 8230 Beverly Boulevard (the "Proposed 8230 Sign").

Evidence: Blau Dec. at Ex 2, BTS 68.

62. The Proposed 8230 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 68.

63. The Proposed 8230 Sign, when built, is not intended to be more than 80 percent above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 46.10-12 (Stephens' Deposition testimony).

64. LA Outdoor has no permit for the Proposed 8230 Sign.

Evidence: Blau Dec. at ¶ 5.

(xvii) 11006 Santa Monica Boulevard

65. LA Outdoor proposes to erect a new billboard at 11006 Santa Monica Boulevard (the "Proposed 11006 Sign").

Evidence: Blau Dec. at Ex 2, BTS 69.

66. The Proposed 11006 Sign, when built, is intended to be 54 feet high. Evidence: Blau Dec. at Ex 2, BTS 69.

67. The Proposed 11006 Sign, when built, is not intended to be above a roof of a building.

Evidence: Blau Dec. at Ex 2 at BTS 49.10-11 (Stephens' Deposition testimony.)

68. LA Outdoor has no permit for the Proposed 11006 Sign.

Evidence: Blau Dec. at ¶ 5.) By Valley Outdoor

69. Valley Outdoor has not proposed any new billboards in the City.

Evidence: Blau Dec. at ¶ 6.

CONCLUSIONS OF LAW ("CL")

Los Angeles Municipal Code Sign Regulations 1. The Los Angeles Municipal Code ("LAMC") defines an off-site sign as "a sign that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution or any other commercial message, which is generally conducted, sold, manufactured, produced, offered or occurs elsewhere than on the premises where the sign is located."

Authority: RJN Ex 5 at BTS 25 (LAMC § 14.4.2).

2. LAMC § 14.4.18B(1) states: "The height to the top of the off-site sign shall be limited to a maximum of 42 feet above the sidewalk grade or edge of roadway grade nearest the sign, except that a sign that is more than 80 percent above a roof of a building may extend to the top of the sign a maximum of 30 feet above the surface of the roof under the sign."

Authority: RJN Ex 5 at BTS 41 (LAMC § 14.4.18B).

3. LAMC § 91.106.1.1 states in relevant part, "No person shall erect, construct, alter, repair, demolish, remove or move any building or structure... unless said person has obtained a permit therefor from the department."

Authority: RJN Ex 6 at BTS 52 (LAMC § 91.106.1.1.)

4. LAMC § 91.6201.2 states in relevant part, "A building permit shall be obtained from the Department in accordance with the provisions of Section 91.106 of this Code for any sign (including a temporary sign) and/or sign alteration, other than changes or replacement of copy...."

Authority: RJN Ex 7 at BTS 67 (LAMC § 91.6201.2.)

5. On May 26, 2010, the U.S. Court of Appeals for the Ninth Circuit issued a decision in World Wide Rush, LLC, et al. v. City of Los Angeles, 606 F.3d 676 (9th Cir. 2010), reversing the district court and holding that the City's exceptions to the Freeway Facing Sign Ban do not undermine the City's asserted interests in enacting the Ban, and that the City Council's exceptions to the Supergraphic and Off-Site Sign Bans were a permissible aspect of its inherent legislative discretion. The decision did not affect the validity of the unchallenged ordinances cited in CL 1 -- CL 4 above.

Authority: Dkt. Nos. 84, 87.

Plaintiffs Have No Right To Erect Any of Their Proposed Signs

6. Plaintiffs have no right to an injunction restraining the City from preventing plaintiffs from erecting or maintaining their Proposed Signs because the Proposed Signs violate the unchallenged 42-foot height limitation of LAMC § 14.4.18B(1) (CL 2). Therefore, plaintiffs lack standing to sue. Proposed Sign Authority 418 North Hoover Street UF 5 (proposed sign is 54') 420 West 58th Street UF 8 (proposed sign is 54') 428 16th Street UF 11 (proposed sign is 54') 555 152nd Street UF 14 (proposed sign is 54'), UF 15 (not intended to be above a roof) 1025 West Washington UF 18 (proposed sign is 54'), UF 19 (not intended to be above a roof) 1102 West Washington UF 22 (proposed sign is 54'), UF 23 (not intended to be above a roof) 1323 West 12th Street UF 26 (proposed sign is 54'), UF 27 (not intended to be above a roof) 1400 Alameda Street UF 30 (proposed sign is 54'), UF 31 (not intended to be above a roof) 1438 Oak Street UF 34 (proposed sign is 54'), UF 35 (not intended to be >80% above a roof) 1441 Wright Street UF 38 (proposed sign is 54'), UF 39 (not intended to be above a roof) 1524 Long Beach Boulevard UF 42 (proposed sign is 54'), UF 43 (not intended to be >80% above a roof) 2002 Burlington Avenue UF 47 (proposed sign is 54') 2232 Enterprise Street UF 50 (proposed sign is 54'), UF 51 (not intended to be above a roof) 3636 Beverly Boulevard UF 54 (proposed sign is 54'), UF 55 (not intended to be >80% above a roof) 5766 Hollywood Boulevard UF 58 (proposed sign is 54'), UF 59 (not intended to be above a roof) 8230 Beverly Boulevard UF 62 (proposed sign is 54'), UF 63 (not intended to be >80% above a roof) 11006 Santa Monica Boulevard UF 66 (proposed sign is 54'), UF 67 (not intended to be above a roof) See also Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805-07, 104 S.Ct. 2118, 80 L.Ed. 2d 772 (1984) (permissible to regulate billboards); Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 895 (9th Cir. 2007) (where permit applications do not demonstrate intent to comply with valid sign regulations, plaintiff lacks standing to challenge other sign regulations); Maverick Media Group, Inc. v. Hillsborough County, Florida, 528 F.3d 817, 821-23 (11th Cir. 2008) (same); KH Outdoor, L.L.C. v. Clay County, 482 F.3d 1299, 1303-04 (11th Cir. 2007) (same); Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 352 (6th Cir. 2007) (same).

7. Plaintiffs have no right to an injunction restraining the City from preventing Plaintiffs from erecting or maintaining the Proposed Signs because Plaintiffs have no building permits for, and thus no vested rights in, the Proposed Signs.

Authority: UF 6, UF 9, UF 12, UF 16, UF 20, UF 24, UF 28, UF 32, UF 36, UF 40, UF 45, UF 48, UF 52, UF 56, UF 60, UF 64, UF 68 (no permits); Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 903 (9th Cir. 2007) (California recognizes a protected property interest in billboard construction only after permit is issued) (emphasis added); West Coast Adver. Co. v. City and County of San Francisco, 256 Cal. App. 2d 357, 359 (1967) (right to billboard permit determined under existing law, except where applicant already had permit and constructed a substantial portion of the authorized structure in good faith reliance) (emphasis added).

Plaintiffs Have No Rights To Damages

8. Plaintiffs LA Outdoor and Valley Outdoor have waived all claims for monetary damages in their Second Amended Complaint.

Authority: RJN Ex 25 at BTS 620-21 (Court Order approving Stipulation waiving damages, and striking all damage claims from Second Amended Complaint).

Judgment Must be Entered For the City

9. There are no triable issues of material fact regarding the claims for (1) declaratory relief, (2) injunctive relief, and (3) deprivation of civil rights asserted by plaintiffs LA Outdoor and Valley Outdoor in their Second Amended Complaint against the City; the City is entitled to judgment as a matter of law on all claims.

20100719

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