CHARLES v. CITY OF LOS ANGELES

e Department of Building and Safety to have a potential for hazard" be referred to the Department of Building and Safety. § 14.4.5(B)(2) (emphasis added). But the prefatory statement in subsection (B) ("The Department of Building and Safety shall refer the following to the Department of Transportation for hazard evaluation and determination prior to the issuance of a building permit . . .") and the directive in subsection (C) ("The Department of Transportation shall return to the Department of Building and Safety each application so referred to it together with a statement of its determination.") still contemplate the issuance of a permit after referral and the City has offered no evidence to suggest that noncommercial signs would be subject to this provision. The Court is not convinced that section 14.4.5(B) and (C) would independently bar Plaintiffs' sign if it were deemed noncommercial.

The application of the Freeway Exposure restriction in section 14.4.6 presents a closer question. It bans all signs within 2,000 feet of a freeway, unless the Department of Building and Safety determines that a sign will not be "viewed primarily from a main traveled roadway of a freeway or on-ramp/off-ramp." LAMC § 14.4.6. The City has offered evidence (and Plaintiffs do not dispute) that the sign Plaintiffs propose will be erected twelve feet from the 10 Freeway to the south and 27 feet from the westbound on-ramp at 16th Street to the north. (Zamperini Decl. ¶ 5.) From the photograph attached to the complaint showing the placement of the sign would go, it appears that the sign would face the 10 Freeway. (Compl., Ex. A.) While the photographs suggest that Plaintiffs' signs would fall within this provision, the City has not offered any evidence that the provision would actually be enforced to prohibit the sign. The City did not cite the provision in its enforcement letter or offer a declaration from any City official that the sign would be barred by

this provision, and that evidence is necessary to demonstrate that this provision would have been a "secondary cause" of the rejection of Plaintiffs' sign. See Get Outdoors II, 506 F.3d at 892 (finding the "secondary cause" of permit denials were size and height restrictions based on affidavits that the provision would have been enforced, even though permit denials themselves did not cite size and height restrictions as grounds for denial). The City's general reference to additional unidentified violations in its letter to Plaintiffs does not demonstrate that the City intended to enforce the Freeway Exposure provision against Plaintiffs, especially in the absence of any evidence that the City regularly applied that provision to similar signs. Because the Court cannot be certain that this provision would bar Plaintiffs' signs, a favorable decision could conceivably redress Plaintiffs' alleged injury. Thus, Plaintiffs have demonstrated standing to pursue their challenges to the Sign Ordinance as to their proposed E! News sign.

Plaintiffs' other arguments as to why the Freeway Exposure would not apply lack merit. First, the Freeway Exposure restriction is not inoperative because the Ninth Circuit's decision in World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676, 684-87 (9th Cir. 2010) did not explicitly deem it "constitutional"; the Court rejected the only ground upon which this Court found the provision invalid and the City was free at that point to revive it. Second, nothing in this restriction suggests that it is a permitting requirement like the Hazard to Traffic provision. It neither mentions a "permit" nor gives "permission" to do anything; it simply imposes a condition on all signs in a specified area prior to the issuance of a permit for a commercial sign or before erection of a noncommercial sign. Third, this section plainly applies to noncommercial signs. Section 14.4.4 permits noncommercial signs "otherwise permitted by this article." If a noncommercial sign is prohibited by the Freeway Exposure provision, then it would not "otherwise [be] permitted by" the Sign Ordinance.

The City alternatively argues that Plaintiffs' injuries are not redressable because they have not alleged the existence of a contract between them and the Entertainment Network, which owns the E! News television show, providing for the show to be advertised on Plaintiffs' sign. However, the Court can reasonably infer from the complaint that the Entertainment Network would be paying for the sign to be posted and, in any case, the Court believes that Plaintiffs could plead this relationship if required to do so. (Opp'n 12 n. 2.)

2. Ripeness

Claims are constitutionally ripe only when they present injuries that are "`definite and concrete, not hypothetical or abstract,'" which can include pre-enforcement injuries, so long as the plaintiff has shown a "genuine threat ofimminent prosecution.'" Wolfson, 616 F.3d at 1058 (emphasis in original). A claimed threat of prosecution is "genuine" when: (1) the plaintiff has articulated a concrete plan to violate the law at issue; (2) the prosecuting authorities have communicated a specific warning or threat to initiate proceedings; and (3) there is a history of past prosecution under or enforcement of the challenged statute. Id.

Plaintiffs' claims regarding the E! News billboard are ripe even though they have not erected signs yet and have not been forced to take them down. Cf. Nat'l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339-40 (11th Cir. 2005) (finding First Amendment challenge to billboard law unripe because plaintiff "never properly pursued its claim through the administrative process that the City's zoning ordinance made available to them" and never obtained a denial of a permit application). Plaintiffs presented to the City the E! News billboard and claimed it was exempt from the City's permitting requirement because it was noncommercial. The City disagreed with Plaintiffs' assessment, deemed the billboard commercial, and threatened criminal and civil sanctions if Plaintiffs were to erect the billboard without a permit. That more than satisfies the first two requirements outlined in Wolfson. The third criterion is also satisfied: the Court is acutely aware of the City's efforts to enforce the sign ordinance against other companies, given the many lawsuits pending before this Court. Thus, there is little doubt that Plaintiffs' challenge to the application of the Sign Ordinance to the E! News billboard is ripe for review. See Wolfson, 616 F.3d at 1059-60.

To the extent the City is arguing that Plaintiffs' claims are unripe for not seeking and being denied a permit before filing suit, that contention hinges on the merits of whether Plaintiffs' sign is properly classified as commercial or noncommercial. Thus, the Court will not address this question separately from the merits.

The City argues that no causal connection exists between Plaintiffs' alleged injury and the City's Sign Ordinance because the City has not specifically enforced the Sign Ordinance against Plaintiffs. That argument is identical to the City's ripeness argument and fails for the same reasons.

Plaintiffs further suggest, however, that they would like to erect unidentified signs that would contain "content related to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings and other works of art." (Compl. ¶ 11.) While Plaintiffs' claims related to the proposed E! News sign are ripe, their claims are not ripe as to other signs, whose content has only been vaguely identified and which may or may not be subject to future actions based upon the nature of their content. See Wolfson, 616 F.3d at 1060 (finding ripeness exists where "the issues raised are primarily legal, do not require further factual development, and the challenged action is final."); see also id. at 1064 (explaining that a claim is not ripe "`if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.'"). Further, an opinion on the content of any sign beyond the one sign whose content has been identified would be an impermissible advisory opinion. See Golden v. Zwicker, 394 U.S. 103, 108 (1969). As a result, the allegations directed at future, unidentified signs are not ripe and must be dismissed.

B. Rule 12(b)(6) Failure to State a Claim

1. Free Speech Violations

The Sign Ordinance defines an "off-site" commercial 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." LAMC § 14.4.2. Plaintiffs allege that, using this definition, the City reviewed Plaintiffs' proposed E! News sign and concluded it was commercial and required a permit. The Court concludes that the City's assessment was both legally correct and reasonable, and Plaintiffs have failed to state a claim for free speech violations.

For the same reasons the Court rejects the City's standing arguments, the Court rejects the City's argument that an opinion on whether Plaintiffs' E! News sign is commercial or noncommercial would be advisory. Plaintiffs have raised a concrete claim and have demonstrated probable injury if they were to erect their E! News sign.

As a general matter, the City may constitutionally distinguish between commercial and noncommercial billboards. See Outdoor Sys., Inc v. City of Mesa, 997 F.2d 604, 610, 613 (9th Cir. 1993); see also Maldonado v. Morales, 556 F.3d 1037, 1045-46 (9th Cir. 2009). In order to apply that distinction, the City may also constitutionally vest officials with the authority to determine when a sign is commercial, since that neither vests an official with unfettered discretion nor creates an unconstitutionally vague permitting scheme. See Outdoor Sys., 997 F.2d at 613.; Nat'l Adver. Co. v. City Cnty. of Denver, 912 F.2d 405, 410 (10th Cir. 1990); Major Media of the Se., Inc. v. City of Raleigh, 792 F.2d 1269, 1272-73 (4th Cir. 1986). As the Ninth Circuit explained in Outdoor Systems:

Because our First Amendment jurisprudence recognizes a distinction between commercial and noncommercial speech, government officials have to place a particular message into one or the other category for purposes of regulation. The potential difficulty of that categorization in itself does not render the regulations unconstitutional. . . . [T]he city officials can and must rely on judicial precedent to determine what is commercial speech . . . [and] sufficient guidance in categorizing speech as commercial or noncommercial is provided by various decisions of the Supreme Court.

997 F.2d at 613 (internal citations omitted).

The Supreme Court has identified three characteristics that, in combination, indicate speech is commercial: (1) its advertising format; (2) its reference to a specific product; and (3) an underlying economic motive of the speaker. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 67 (1983). However, the Court inCity of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 422-23 (1993), seemed to suggest a narrower definition of commercial speech as speech that, at its core, "propos[es] a commercial transaction." The Ninth Circuit has variously followedDiscovery Network and Bolger, but has specifically noted that both remain good law. See Ass'n of Nat'l Advers. v. Lungren, 44 F.3d 726, 730 (9th Cir. 1994); Outdoor Sys., 997 F.2d at 610. Under either test, the commercial/noncommercial distinction is based on common sense, keeping in mind that commercial speech must be examined "`carefully to ensure that speech deserving of greater constitutional protection is not inadvertently suppressed.'" Discovery Network, 507 U.S. at 423.

See Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 906 (9th Cir. 2002); Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1185 (9th Cir. 2001).

See Ass'n of Nat'l Advers. v. Lungren, 44 F.3d 726, 728 (9th Cir. 1994).

The tests for the distinction between commercial and noncommercial speech under the California Constitution are the same as under the First Amendment. See Kasky v. Nike, 27 Cal. 4th 939, 958-59 (2002).

Under either the Bolger test or the Discovery Network test, common sense leads to but one conclusion in this case: Plaintiffs' billboard was properly classified as commercial. Plaintiffs admit that they have an economic interest in erecting advertising signs like the E! News sign. (Compl. ¶ 1.) The sign uses the E! News logo and images of the show's hosts to advertise a product in order to attract viewers. By increasing viewership, the show generates ratings, which then translate into higher prices for commercials aired during the show. The sign surely faces the busy 10 Freeway for this very purpose. And the proposed sign contains no even arguably noncommercial content, indicating that its purpose is purely to generate revenue, rather than to disseminate any noncommercial message.

Plaintiffs cite a series of state and federal cases to argue that advertising for noncommercial speech is itself noncommercial speech subject to full First Amendment protection. See, e.g.,Page v. Something Weird Video, 960 F. Supp. 1438, 1443-44 (C.D. Cal. 1996); Lane v. Random House, Inc., 985 F. Supp. 141, 152 (D.D.C. 1995);Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860, 872-73 (1979) (Bird, C.J., concurring); Rezec v. Sony Pictures Ent., Inc., 116 Cal. App. 4th 135, 140-44 (2004); Polydoros v. Twentieth Cent. Fox Film Corp., 67 Cal. App. 4th 318, 324-25 (1997). All of these cases except Rezec involved arguments that the First Amendment protected the use of an individual's name or likeness, which was a defense to various state tort claims, such as the right to publicity, see Page, 960 F. Supp. at 1443, or defamation, see Lane, 985 F. Supp. at 149. In that circumstance, the courts extended the First Amendment protection to the use of the individual's likeness in advertising for the underlying protected speech. See, e.g., Guglielmi, 25 Cal. 3d at 872-73. In these cases, the protection extended to the advertising at issue because it was merely "adjunct" or "incidental" to the core protected noncommercial speech. See id.; Page, 960 F. Supp. at 1443.

In a footnote in Bolger, the Supreme Court suggested this might be possible. Bolger, 463 U.S. at 68 n. 14 (noting that advertising of an activity itself protected by the First Amendment may not be commercial).

Unlike these cases, the proposed E! News billboard contains no noncommercial content, such that the advertising could be considered merely an "adjunct" to the underlying noncommercial speech. See Guglielmi, 25 Cal. 3d at 872-73. In this respect, the Court finds the decision in Rezec instructive. In that case, the plaintiffs sued a movie studio under state law for the false portrayal in advertising of a fictitious critic giving favorable reviews of several movies. 116 Cal. App. 4th at 138. Invoking many of the same cases Plaintiffs cite here, the studio moved to strike the complaint on the ground that the advertisements at issue was noncommercial speech because they related to movies, which were considered core noncommercial speech not properly subject to the tort suit. Id. at 141-42. The court denied the motion, reasoning that, "[h]ad the advertisements here been `merely . . . adjunct[s] to the exhibition of the film[s]," as in Guglielmi, "such as by using photographs of actors in the films, Sony would have a point because, just as the films are noncommercial speech, so is an advertisement reflecting their content." Id. at 142. Yet, the advertising at issue did not "reflect any character or portion of the films," but rather a fictitious critic's favorable opinions of the films, so they were purely commercial speech intended to sell the films.Id. at 142-43. Here, too, Plaintiffs' billboard does not reflect any content of E! News, apart from the E! News logo and photographs of the hosts, which were undoubtedly used to advertise the E! News program. Thus, the cases cited by Plaintiff do not demonstrate that the E! News sign is anything but commercial.

For these same reasons, the E! News billboard does not fall within the category of noncommercial speech that is either promoted in a paid advertisement or carried in a form sold for a profit. See Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976).

Perhaps most important, unlike these cases, "`[w]e deal here with the law of billboards,'" which is a "`method of communicating ideas . . . unto itself.'" See World Wide Rush, 606 F.3d at 684. In this context, recent Ninth Circuit cases have made clear that the Court should defer to the City's "reasonably graduated response to different aspects of a problem." Metro Lights, LLC v. City of Los Angeles, 551 F.3d 898, 910 (9th Cir. 2009). Given that the City may constitutionally distinguish between commercial and noncommercial signs, see Outdoor Systems, 997 F.2d at 610, and may constitutionally grant officials authority to make that distinction, see id. at 613, the City must be given some space to apply the tests for commercial speech and to reach reasonable judgments as to what is and is not commercial, lest federal courts become the first-line arbiters of hundreds of thousands of billboards to be erected across the country. Plaintiffs here have not alleged that the City in this case has attempted to use the commercial/noncommercial distinction to suppress noncommercial speech and the City's judgment that the E! News billboard was commercial was both legally correct and reasonable.

Plaintiffs do not challenge the City's regulations or permitting requirements directed at commercial signs. Thus, because Plaintiffs' sign was properly deemed commercial, the City can prohibit it as an unpermitted commercial sign and Plaintiffs have failed to state a claim for free speech violations. The Court need not address any of the City's other arguments directed specifically at Plaintiffs' claims for declaratory and injunctive relief.

2. Equal Protection Claim

Plaintiffs conclusorily allege that, "by prohibiting Plaintiffs from posting their proposed signs, but allowing other favored entities and organizations to post similar signs bearing similar content, the City has violated Plaintiffs' right to equal protection." (Compl. ¶ 32.) Plaintiffs do not allege which particular signs were treated more favorably, how they were treated more favorably, or why. While these threadbare allegations provide little guidance on the issue, Plaintiffs explained the nature of this claim in their opposition: "Plaintiffs have alleged that they are similarly situated to other favored entities which have been permitted to post noncommercial temporary signs, but that the City has intentionally treated the two parties differently." (Opp'n 20 (emphasis added).)

Generally, disparate treatment by a governmental entity that does not implicate a fundamental right or a suspect classification is permissible so long as it bears a rational relationship to a legitimate state interest. Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir. 1990). Plaintiffs' complaint and arguments appear to raise both a traditional "classification" equal protection claim and a "class of one" equal protection claim. In a "classification" claim, the action challenged targets individuals for differing treatment based on a particular characteristic, while treating similarly situated individuals who lack that same characteristic differently. See Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). In a "class of one" claim, the action challenged targets the plaintiff individually for arbitrary or irrational treatment. Id.; Valley Outdoor, Inc. v. City of Riverside, 446 F.3d 948, 955 (9th Cir. 2006) (recognizing the "class of one" theory in equal protection challenge to sign permitting ordinance); Lockary, 917 F.2d at 1155.

Plaintiffs do not claim that this case involves any fundamental right or suspect classification.

To the extent Plaintiffs raise a "classification" claim, it fails as a matter of law because the City may constitutionally distinguish between commercial and noncommercial billboards, restricting the former, while permitting the latter. See Outdoor Sys., 997 F.2d at 610-11; see also Maldonado, 556 F.3d at 1045-46. Because the city properly classified Plaintiffs' sign as commercial, it could properly ban it, while allowing noncommercial signs. Thus, Plaintiffs cannot allege a "classification" equal protection claim.

To the extent Plaintiffs invoke a "class of one" theory, they have failed to state a claim. Plaintiffs' "class of one" theory appears to be based upon the City's "improper or unlawful" refusal to allow them to erect their noncommercial sign, while allowing others to erect noncommercial signs. See Valley Outdoor, 446 F.3d at 955. However, as the Court concluded above, the City properly deemed Plaintiffs' E! News sign as commercial, so the City did not improperly or unlawfully refuse to allow Plaintiffs to erect it. While Plaintiffs might argue that the City has selectively enforced the commercial/noncommercial distinction, "[s]elective enforcement of valid laws, without more, does not make the [City's] action irrational." Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir. 1995). Because the City properly classified Plaintiffs' E! News sign as commercial, Plaintiffs have not stated a claim for irrational treatment. See id. ("Although Freeman contends that other bars in high crime areas obtained dance permits, the fact remains that the denial was proper under the ordinance.").

Furthermore, even if legally cognizable, Plaintiffs do not allege any specific facts to show that the City's ultimately proper classification of their sign as commercial was arbitrary, irrational or pretext for unlawful discrimination. To the contrary, Plaintiffs have admitted that they are not uniquely the subject of irrational enforcement: they allege that they have not erected their signs "based on knowledge that the City has recently jailed and fined individuals who it believes have violated the Sign Regulations." (Compl. ¶ 13.) The Court also takes judicial notice that, far from arbitrarily enforcing the Sign Ordinance against Plaintiffs here and no one else, the City has vigorously defended the proliferation of cases brought by many sign companies challenging the Sign Ordinance. Thus, Plaintiffs' "class of one" equal protection claim fails.

See, e.g., World Wide Rush, 606 F.3d at 683-84; Metro Lights, 551 F.3d at 902-03; Show Media Cal., LLC v. City of Los Angeles, No. CV 09-3270 ABC (JWJx) (C.D. Cal. filed on May 8, 2009);Vanguard Outdoor, LLC v. City of Los Angeles, No. CV 08-6035 ABC (JWJx) (C.D. Cal. filed on Sept. 15, 2008); Paramount Contractors Developers, Inc. v. City of Los Angeles, No. CV 08-5653 ABC (PLAx) (C.D. Cal. filed on Aug. 28, 2008). The Court takes judicial notice that counsel for Plaintiffs represents a billboard company in one of the cases that has challenged the City's Sign Ordinance. See Figueroa Project 2, LLC v. City of Los Angeles, Case No. CV 08-5066 ABC (JWJx) (C.D. Cal. filed Aug. 1, 2008).

C. Rule 12(e) Motion for More Definite Statement

The City moves for a more definite statement of the content of signs to be posted after the E! News sign is taken down. Plaintiffs merely allege that future signs "will bear content related to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings and other works of art." (Compl. ¶ 11.) Because these claims must be dismissed as unripe, the City's motion for a more definite statement is moot.

CONCLUSION

Plaintiffs have demonstrated standing to pursue their claims. Plaintiffs have also demonstrated that their challenge to the erection of the E! News billboard is ripe, but have failed to demonstrate that their challenge to future, unidentified signs is ripe. On the merits, Plaintiffs have failed to state claims for violations of their free speech and equal protection rights. None of these claims can be cured by amendment, so the Court DISMISSES Plaintiffs' claims WITH PREJUDICE. See Thinket Ink Info. Res., Inc. v. Sun Microsys., Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). The City's motion for a more definite statement is DENIED as MOOT.

The City is ORDERED to lodged a proposed judgment consistent with this Order within 10 days of the filing of this Order.

IT IS SO ORDERED.