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Citizens for Free Speech, LLC v. County of Alameda

United States District Court, N.D. California, Oakland Division

May 9, 2018

CITIZENS FOR FREE SPEECH, LLC; MICHAEL SHAW, Plaintiffs,
v.
COUNTY OF ALAMEDA; EAST COUNTY BOARD OF ZONING ADJUSTMENTS; and FRANK J. IMHOFF, SCOTT BEYER, and MATTHEW B. FORD, all in their official capacities as members of the East County Board of Zoning Adjustments, Defendants.

          ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Dkt. 22

          SAUNDRA BROWN ARMSTRONG Senior United States District Judge

         Plaintiffs Citizens for Free Speech, LLC (“Citizens”) and Michael Shaw (“Shaw”) bring the instant action under the First and Fourteenth Amendments against the County of Alameda (“County”) and related parties, pursuant to 42 U.S.C. § 1983. Plaintiffs erected billboards on Shaw's property which they admit violate the County's Code of Ordinances. Nonetheless, Plaintiffs allege in this action that Defendants are foreclosed from taking any action to abate the signs as a result of the judgment entered by District Judge Charles Breyer in their prior lawsuit against the County, styled as Citizens for Free Speech v. Cty. of Alameda, Civ. No. 14-2513 CRB (“Prior Action”).

         The parties are presently before the Court on Plaintiffs' Motion for Preliminary Injunction. Dkt. 22. The motion seeks to enjoin Defendants from commencing administrative enforcement proceedings for the abatement of the signs at issue. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the motion for the reasons set forth below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

         I. BACKGROUND

         A. Prior Litigation

         1. Factual Overview

         Shaw owns real property located at 8555 Dublin Canyon Road, which is in an unincorporated area of Alameda County. Compl. ¶ 8, Dkt. 1. In 2014, Shaw and Citizens entered into an agreement for the latter to construct and display billboards on Shaw's property. Id. ¶¶ 9, 10. The signs “displayed political messages which Plaintiffs considered to be contrary to the political ideology espoused by County officials.” Id. Plaintiffs acknowledge that “[t]he display of the signs was not allowed under the Code.” Id. ¶ 11.[1]

         On June 10, 2014, the County mailed Shaw a Declaration of Public Nuisance- Notice to Abate, claiming that the Signs violated Ordinances sections 17.18.010 and 17.18.120. See Citizens for Free Speech v. Cty. of Alameda, Civ. No. 14-2513 CRB (“No. 14-2513”), Dkt. 105 at 2. The Notice to Abate instructed Shaw to remove the signs or face an abatement proceeding and the imposition of fines. Id.

         2. Substantive Proceedings

         In response to the County's threat of action, Citizens and Shaw commenced the Prior Action in this Court on June 14, 2014. Id., Dkt. 1. The pleadings sought declaratory and injunctive relief against the County, pursuant to 42 U.S.C. § 1983, based on the following claims for relief:

(1) violation of the right to free speech under the First Amendment;
(2) violation of the right to Equal Protection under the Fourteenth Amendment;
(3) violation of the right to free speech under the California Constitution; and (4) violation of the right to Equal Protection under the California Constitution. Id. The action was assigned to Judge Breyer.

         Shortly after commencing the action, Plaintiffs moved for a preliminary injunction to enjoin the County from pursuing its scheduled abatement action. Id. Dkt. 50. Judge Breyer granted the motion, finding that Plaintiffs were “likely to succeed on their challenges to sections 17.18.130 and 17.54.080 of the County's zoning ordinance, because section 17.18.130 afforded County officials unfettered discretion, and because there were no procedural safeguards to ensure that County officials would render decisions under sections 17.18.130 and 17.54.080 in a timely manner.” Id., Dkt. 130 (citing Dkt. 34 at 15-17). The Court entered the injunction on September 30, 2014. Id., Dkt. 50.[2]

         On April 15, 2015, the County moved for summary judgment on all of Plaintiffs' claims. Id., Dkt. 55. On July 16, 2015, Judge Breyer granted summary judgment as to: “Plaintiffs' free speech claims, to the extent that those claims are based on: (1) an as-applied challenge; (2) a facial challenge as to the unfettered discretion granted by Zoning Ordinance §§ 17.52.520(Q), 17.52.520(D), and 17.54.130; and (3) a facial challenge as to Section 17.52.515's purported regulation of speech based on its content.” Id., Dkt. 71 at 2. The Court denied summary judgment on (1) Plaintiffs' facial challenge to Zoning Ordinance section 17.18.130, finding that “the ‘totality of the factors' indicates that County officials have unfettered discretion under that provision, ” and on (2) Plaintiffs' Equal Protection claims. Id.

         Subsequent to the Court's ruling on its summary judgment motion, the County amended section 17.18.130 (one of the ordinances underlying the preliminary injunction order). Id., Dkt. 130 at 2. In adjudicating the County's second summary judgment motion, the Court ruled that the amendment cured the constitutional deficiencies alleged by Plaintiffs. Id., Dkt. 105 at 7-13; id., Dkt. 130 at 9-10, 16 n.14. In view of the amendment, coupled with Plaintiffs' decision to no longer challenge section 17.54.080, [3] Plaintiffs acknowledged that they had no further constitutional objections to the County's sign regulations. Id., Dkt. 123 at 6 (“Citizens does not challenge the current sign code.”). Subsequently, the Court granted the County's request to dissolve the preliminary injunction. Id., Dkt. 125. The Court also rejected Plaintiffs' repeated requests for a permanent injunction “to enjoin enforcement of the unconstitutional sign code.” Id., Dkt. 130 at 8.

         3. Motion for ...


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