UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT...Jul 24, 2018 · Dkt. 116, Defendant County of Alameda’s Status Report I Dkt. 107, Plaintiffs’ [Proposed] Judgment and Permanent

Docket No. 18-15970

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITIZENS FOR FREE SPEECH, LLC and MICHAEL SHAW Plaintiffs and Appellants,

vs.

COUNTY OF ALAMEDA; ALAMEDA COUNTY EAST COUNTY BOARD OF ZONING ADJUSTMENTS; FRANK J. IMHOFF, SCOTT

BEYER, and MATTHEW B. FORD, in their official capacities as members of the Alameda County East County Board of Zoning

Adjustments Defendants and Appellees.

Appeal from the United States District Court for the Northern District of California

Case No. 4:18-cv-00834

APPELLEES’ MOTION TO SUPPLEMENT THE RECORD OR FOR JUDICIAL NOTICE IN SUPPORT OF APPELLEES’ BRIEF

*Matthew D. Zinn Winter King Aaron M. Stanton Shute, Mihaly & Weinberger LLP 396 Hayes Street San Francisco, California 94102 Telephone: (415) 552-7272 Facsimile: (415) 552-5816

Attorneys for Defendants and Appellees

Case: 18-15970, 07/24/2018, ID: 10953821, DktEntry: 11-1, Page 1 of 7(1 of 122)

1

Defendants and Appellees County of Alameda et al. respectfully re-

quest that this Court supplement the record with excerpts of the docu-

ments set forth below—all of which are records of the district court filed

in a prior action. Those records were considered by the district court in

entering the order challenged in this appeal. In the alternative, the

County respectfully requests that this Court take judicial notice of those

documents pursuant to Rule 201(b)(2) of the Federal Rules of Evidence

on the grounds that they are each capable of accurate and ready deter-

mination by resort to sources whose accuracy cannot reasonably be ques-

tioned, namely the docket of the District Court for the Northern District

of California.

Each of the following documents is an excerpt of a pleading, order,

or other document filed in Citizens for Free Speech, LLC v. County of Al-

ameda, Case No. C14-cv-02513-CRB:

INDEX OF EXHIBITS

DOCUMENT (USDC Docket Number and Title) EXHIBIT

Dkt. 138, Transcript of Proceedings (Re Plaintiffs’ Motion for Damages and Attorneys’ Fees)

A

Dkt. 137, Transcript of Proceedings (Re Defendant’s Motion to Dissolve Preliminary Injunction)

B


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Dkt. 131, Judgment C

Dkt. 125, Minute Entry (Granting Defendant’s Motion to Dissolve Preliminary Injunction)

D

Dkt. 123, Plaintiffs’ Opposition to Defendant County of Alameda’s Motion to Dissolve Preliminary Injunction; Plaintiffs’ Request for Modified Preliminary Injunction

E

Dkt. 121, Defendant’s Notice of Motion and Motion to Dissolve Preliminary Injunction

F

Dkt. 118, Plaintiffs’ Response to County of Alameda’s “Status Report”

G

Dkt. 117, Request for Judicial Notice in Support of Defendant County of Alameda’s Status Report

H

Dkt. 116, Defendant County of Alameda’s Status Report I

Dkt. 107, Plaintiffs’ [Proposed] Judgment and Permanent Injunction

J

Dkt. 71, Order Granting in Part and Denying in Part Defendant’s Motion for Summary Judgment

K

Dkt. 65, Corrected Exhibit A to Request for Judicial Notice in Opposition to Defendant County of Alameda’s Motion for Summary Judgment

L

Dkt. 60, Request for Judicial Notice in Support of Defendant’s Motion for Summary Judgment and Exhibits Thereto

M

Dkt. 50, Preliminary Injunction N

Dkt. 1, Complaint for Civil Rights Violation and Injunctive and Declaratory Relief

O


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MEMORANDUM OF POINTS AND AUTHORITIES

The County requests that the Court supplement the record with the

excerpted documents referenced in the table above because these docu-

ments were part of the record considered by the district court in issuing

the order from which Plaintiffs have appealed.

Each of these excerpted documents—records in Citizens for Free

Speech, LLC v. County of Alameda, Case No. C14-cv-02513-CRB, the

prior action between the parties to this litigation—was included in the

County’s Request for Judicial Notice in Opposition to Plaintiffs’ Motion

for Preliminary Injunction (“RJN”) below. See Appellant’s Excerpts of

Record (“ER”) 33-54. In that RJN, the County did not attach reproduc-

tions of the documents above, but instead noted that each was “available

via CM/ECF[.]” ER 34. Further, though the district court did not ex-

pressly rule on the RJN, it considered and relied on the documents in-

cluded therein in denying the preliminary injunction. See ER 6-8 (citing

Dkt. 1, Dkt. 50, Dkt. 71, Dkt. 123, and Dkt. 125; proposed exhibits D, E,

K, N, and O, respectively, in the table above). Since these documents were

considered by the district court, they are properly part of the record. See

Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th Cir. 1982)


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(holding that documents considered by the court below were properly

part of the record), questioned on other grounds by Cristobal v. Siegel, 26

F.3d 1488 (9th Cir. 1994); Rosales-Martinez v. Palmer, 753 F.3d 890 (9th

Cir. 2014) (granting motion to supplement the record and taking judicial

notice of judicial proceedings in other courts).

In the alternative, Rule 201(c) of the Federal Rules of Evidence

mandates that federal courts take judicial notice of qualifying facts upon

a properly supported request by a party. Rule 201(b)(2) authorizes judi-

cial notice of any fact that “can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.”

Exhibits A through O are excerpts of pleadings, orders, and other

documents filed in Citizens for Free Speech, LLC v. County of Alameda,

Case No. C14-cv-02513-CRB, a prior action between the parties in the

present dispute. The Ninth Circuit regularly takes judicial notice, under

subsection 201(b)(2), of proceedings in other courts. Reyn’s Pasta Bella,

LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking ju-

dicial notice of pleadings, memoranda, expert reports, and other docu-

ments from proceedings in another court); United States ex rel. Robinson


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Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (taking ju-

dicial notice of proceedings before another court).

Exhibits A through O are relevant to this proceeding. The County

argues that the district court did not err in concluding that Plaintiffs-

Appellants failed to establish a likelihood of success on the merits of their

claims because the County is not precluded from enforcing its regulations

against Plaintiffs. Exhibits A through O, excerpts of documents in the

prior proceeding, are relevant to establishing that the County’s enforce-

ment proceeding is not precluded. For ease of review, the County has in-

cluded only the relevant excerpts cited in the County’s brief in the at-

tached materials.

Plaintiffs-Appellants included two documents from the prior suit—

Citizens for Free Speech, LLC v. County of Alameda, Case No. C14-cv-

02513-CRB, Dkt. 105, Order Granting in Part and Denying in Part De-

fendant’s Second Motion for Summary Judgment; Granting in Part and

Denying in Part Plaintiffs’ Motion for Summary Judgment; and Dkt. 130,

Order Granting Motion for Damages and Attorneys’ Fees—in their ex-

cerpts of record. See ER 216-259. The County does not oppose the inclu-

sion of these documents in the record.


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DATED: July 24, 2018 SHUTE, MIHALY & WEINBERGER LLP

By: /s/ MATTHEW D. ZINN

WINTER KING AARON M. STANTON



Docket No. 18-15970

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITIZENS FOR FREE SPEECH, LLC and MICHAEL SHAW Plaintiffs and Appellants,

vs.

COUNTY OF ALAMEDA; ALAMEDA COUNTY EAST COUNTY BOARD OF ZONING ADJUSTMENTS; FRANK J. IMHOFF, SCOTT

BEYER, and MATTHEW B. FORD, in their official capacities as members of the Alameda County East County Board of Zoning

Adjustments Defendants and Appellees.

Appeal from the United States District Court for the Northern District of California

Case No. 4:18-cv-00834

EXHIBITS TO APPELLEES’ MOTION TO SUPPLEMENT THE RECORD OR FOR JUDICIAL NOTICE IN SUPPORT OF

APPELLEES’ BRIEF

*Matthew D. Zinn Winter King Aaron M. Stanton Shute, Mihaly & Weinberger LLP 396 Hayes Street San Francisco, California 94102 Telephone: (415) 552-7272 Facsimile: (415) 552-5816



EXHIBIT A


Pages 1 - 5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Before The Honorable Charles R. Breyer, Judge

CITIZENS FOR FREE SPEECH, LLC, )ET AL., ) ) Plaintiffs, ) ) VS. ) NO. CV 14-02513-CRB ) COUNTY OF ALAMEDA, ) ) Defendant. ) ) San Francisco, California Friday, March 3, 2017

TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiffs: JOSHUA R. FURMAN LAW CORPORATION 14724 Ventura Boulevard - Suite 509 Sherman Oaks, CA 91403 BY: JOSHUA R. FURMAN, ESQUIRE For Defendant: SHUTE, MIHALY & WEINBERER 396 Hayes Street San Francisco, CA 94102 BY: MATTHEW D. ZINN, ESQUIRE Reported By: Pamela A. Batalo, CSR No. 3593, RMR, FCRR Official Reporter


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Friday - March 3, 2017 10:12 a.m.

P R O C E E D I N G S

---000---

THE CLERK: Calling CV 14-2513, Citizens for Free

Speeck, LLC, et al., vs. County of Alameda.

MR. FURMAN: Good morning, Your Honor. Joshua Furman

for plaintiffs.

MR. ZINN: Good morning, Your Honor. Matthew Zinn for

the County.

THE COURT: So in the Complaint, there's no nominal

fee prayer?

MR. FURMAN: Not a separate prayer for nominal

damages. We did pray for --

THE COURT: I mean nominal damages.

MR. FURMAN: We did pray for compensatory damages, and

we cited Your Honor to Ninth Circuit precedent discussing well,

compensatory damages and nominal damages, that's what you are

asking for, damages are damages, and we also asked for such

other further relief as the Court deems appropriate.

THE COURT: Such further relief. That would be the

nominal damages. I mean, just looking at it, it seems like you

lost almost everything, except the equal protection argument.

MR. FURMAN: Well, when you look at --

THE COURT: And you got them to change some things, I

guess.

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MR. FURMAN: We won a preliminary injunction, which

was in place for a couple of years. We did get spark changes

in policy under Wilcox, and looking at the course of this

particular case where sometimes certain claims made the cut and

sometimes other claims made the cut, in fact, if we didn't have

some of the claims that we ultimately lost on at summary

judgment, we wouldn't have made it past the first summary

judgment.

So I think in that case, you really need to look at what

the Ninth Circuit talks about, not going claim by claim when

you're considering this kind of process, assuming we're talking

about fees at this point.

THE COURT: Right.

MR. FURMAN: And saying well, look, in the history of

this case, given the process that we had to go through, given

the multifarious aspects that were changed when we challenged

them, I think that that does put us in the position of an

entitlement to fees and an entitlement to the fees that we ask

for which were not -- for 290 some hours for the length this

case has gone, it's really a relatively modest request.

THE COURT: Doesn't seem so modest to you; right?

MR. ZINN: Not so much, Your Honor.

THE COURT: Those billboards are still up?

MR. ZINN: Oh, yes.

MR. FURMAN: Yes.

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THE COURT: Can you do anything about it?

MR. ZINN: Yes, we can, Your Honor, and the County is

working on that process.

THE COURT: What are you doing about it?

MR. ZINN: Well, the County is considering enforcement

options against the signs, but they haven't made any decisions

that I'm aware of at this point about how to proceed. However,

the fact that the injunction has been dissolved frees the

County up to take enforcement action.

I would just point out, Your Honor, on the nominal damages

issue, we cited a variety of cases that suggest that nominal

damages is not an appropriate remedy for the kind of facial

challenge that plaintiffs had here, and plaintiffs have

pointed -- not only have plaintiffs in their reply not

addressed any of those cases, they haven't pointed to any case

in which a court awarded nominal damages for a facial

challenge.

The cases that they cite are all cases involving

individual actions against the -- targeted at the plaintiffs.

So I would seriously contest their entitlement to any nominal

damages here at all.

THE COURT: Well, do you agree -- I'm asking the

plaintiffs.

Do you agree that it's the facial challenge that has

succeeded?

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MR. FURMAN: It's sometimes difficult to categorize an

equal protection challenge as a facial challenge or something

else, as though there was a distinction.

Certainly I think the overbreadth analysis that counsel

pointed to in the brief would not apply to this kind of case.

We're not talking about some other folks being chilled but not

us. We're talking about a law being applied, including -- to

us inequitably or not equally, at least.

So is it a facial challenge and a facial challenge only?

Going through the procedure of this case in the way that

Your Honor has ruled, that would appear to be the case.

Looking at the ultimate conclusion of the holding in the motion

for summary judgment where Your Honor granted judgment, I think

that that's a less clear question.

THE COURT: Okay. Well, thank you very much.

MR. ZINN: Thank you, Your Honor.

MR. FURMAN: Thank you, Your Honor.

THE COURT: You'll get something.

(Proceedings adjourned at 10:17 a.m.)

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CERTIFICATE OF REPORTER

I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled matter.

DATE: Wednesday, March 14, 2018

_________________________________________ Pamela A. Batalo, CSR No. 3593, RMR, FCRR U.S. Court Reporter

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EXHIBIT B


Pages 1 - 7



Before The Honorable Charles R. Breyer, Judge

CITIZENS FOR FREE SPEECH, LLC, )ET AL., ) ) Plaintiffs, ) ) VS. ) NO. CV 14-02513-CRB ) COUNTY OF ALAMEDA, ) ) Defendant. ) ) San Francisco, California Tuesday, November 29, 2016

TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiffs: JOSHUA R. FURMAN LAW CORPORATION 14724 Ventura Boulevard - Suite 509 Sherman Oaks, CA 91403 BY: JOSHUA R. FURMAN, ESQUIRE For Defendant: SHUTE, MIHALY & WEINBERER 396 Hayes Street San Francisco, CA 94102 BY: MATTHEW D. ZINN, ESQUIRE Reported By: Pamela A. Batalo, CSR No. 3593, RMR, FCRR Official Reporter


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you know, the case has been around. I'm just now trying to

figure out how to wrap it up.

So if you want to wrap it up, I guess you say, "Okay, we

have -- summary judgment in our favor. Having obtained summary

judgment, we now want -- we are now moving for attorneys' fees,

and here is the bill or here is what we're seeking, application

for attorneys' fees in light of grant of summary judgment."

I think they're right. I think they're right. I don't

know. I have to look at it.

MR. ZINN: Your Honor, that's the question, and we

haven't -- that issue hasn't been fully argued --

THE COURT: I know. I mean --

MR. ZINN: -- the question of whether they're entitled

to even nominal damages and, thus, whether they prevailed at

all.

THE COURT: I have no idea. But I'd like to join that

issue. I would like not to see you back here for 26 procedural

matters and I would like to see you back here to argue the case

as to whether or not they should get attorneys' fees.

MR. FURMAN: I mean --

THE COURT: What the damages are.

MR. FURMAN: The way you presented the ruling on the

motion to dissolve at the beginning, I'm assuming you're not

going to entertain argument.

But what you are talking about, we are probably going to

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be back here 20 more times, because there is going to be an

enforcement action --

THE COURT: Well, if there's an enforcement action,

there's an enforcement action. I don't know where that's

going. But right now there is no enforcement action.

MR. FURMAN: There is just the imminent threat of

enforcement because they said they would do it.

THE COURT: Well, we will see what they are going to

do.

MR. ZINN: Your Honor, procedurally, I don't know how

we would present the issue, but I agree -- and we would be

happy to submit briefs on -- limited to the issue of whether

nominal damages are available.

THE COURT: Why don't you file a motion for damages.

MR. FURMAN: All right.

THE COURT: Including attorneys' fees, and then we'll

deal with it.

MR. FURMAN: So you would like a -- a full-bore motion

for attorneys' fees in addition to the request for nominal

damages in one motion?

THE COURT: Well, they're not seeking damages.

MR. ZINN: We, the County? Certainly not. But

just --

THE COURT: It's your motion for damages.

MR. FURMAN: Okay.

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CERTIFICATE OF REPORTER

I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled matter.

DATE: Wednesday, March 14, 2018

_________________________________________ Pamela A. Batalo, CSR No. 3593, RMR, FCRR U.S. Court Reporter

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EXHIBIT C


Uni

ted

Stat

es D

istr

ict C

ourt

For t

he N

orth

ern

Dis

trict

of C

alifo

rnia

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G:\CRBALL\2014\2513\Citizens - judgment.wpd

Uni

ted

Stat

es D

istr

ict C

ourt

For t

he N

orth

ern

Dis

trict

of C

alifo

rnia

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CITIZENS FOR FREE SPEECH, LLC, ETAL,

Plaintiff,

v.

COUNTY OF ALAMEDA,Defendant.

/

No. C 14-02513 CRB

JUDGMENT

The Court hereby enters judgment in this case in accordance with the Order on

Motions for Summary Judgment (dkt. 105).

IT IS SO ORDERED.

Dated: March 7, 2017 CHARLES R. BREYERUNITED STATES DISTRICT JUDGE

Case 3:14-cv-02513-CRB Document 131 Filed 03/08/17 Page 1 of 1 Case: 18-15970, 07/24/2018, ID: 10953821, DktEntry: 11-2, Page 15 of 114(22 of 122)

EXHIBIT D


1

Aaron M. Stanton

From: [email protected]: Tuesday, November 29, 2016 2:22 PMTo: [email protected]: Activity in Case 3:14-cv-02513-CRB Citizens for Free Speech, LLC et al v. County of

Alameda Motion Hearing

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

California Northern District

Notice of Electronic Filing The following transaction was entered on 11/29/2016 at 2:21 PM PST and filed on 11/29/2016 Case Name: Citizens for Free Speech, LLC et al v. County of AlamedaCase Number: 3:14-cv-02513-CRB Filer: Document Number: 125(No document attached)

Docket Text: Minute Entry for proceedings held before Hon. Charles R. Breyer: Motion Hearing held on 11/29/2016 granting [121] Motion to Dissolve Preliminary Injunction. Plaintiff will file a motion for damages including attorney fees. Total Time in Court 5 minutes. Court Reporter: Pamela Batalo. Plaintiff Attorney Joshua Furman. Defendant Attorney Matthew Zinn. This is a text only Minute Entry. There is no pdf image associated with this entry. (afmS, COURT STAFF) (Date Filed: 11/29/2016)

3:14-cv-02513-CRB Notice has been electronically mailed to: Joshua Reuben Furman [email protected] Matthew Dwight Zinn [email protected], [email protected] Winter King [email protected] 3:14-cv-02513-CRB Please see Local Rule 5-5; Notice has NOT been electronically mailed to:


EXHIBIT E


Opposition to Motion to Dissolve Preliminary Injunction

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Joshua R. Furman, Bar No. 225461 [email protected] JOSHUA R. FURMAN LAW CORPORATION 14724 Ventura Boulevard, Suite 509 Sherman Oaks, California 91403 Telephone: (818) 646-4300 Facsimile: (818) 646-4301 Attorney for Plaintiffs, CITIZENS FOR FREE SPEECH, LLC, MICHAEL SHAW



CITIZENS FOR FREE SPEECH, LLC; MICHAEL SHAW

Plaintiffs,

v.

COUNTY OF ALAMEDA, Defendant.

CASE NO. 3:14-cv-02513 CRB

OPPOSITION TO DEFENDANT COUNTY OF ALAMEDA’S MOTION TO DISSOLVE PRELIMINARY INJUNCTION; PLAINTIFFS’ REQUEST FOR MODIFIED PRELIMINARY INJUNCTION Date: November 29, 2016 Time: 2:00 p.m. Courtroom: 6; Hon. Charles R. Breyer

///


1 Opposition to Motion to Dissolve Preliminary Injunction

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Plaintiffs CITIZENS FOR FREE SPEECH, LLC and MICHAEL SHAW

(collectively “Citizens”) respectfully submit their opposition to Defendant

COUNTY OF ALAMEDA’S (the “County’s) motion to dissolve the preliminary

injunction as follows:

I. INTRODUCTION

For the third time, the County requests the Court dissolve the preliminary

injunction. The County’s argument this time around seems simple enough. The

County has amended its sign code for the umpteenth time since Citizen’s lawsuit

was filed and the discrete unconstitutional issues identified by the Court in the

County’s former sign code sections have, one by one, been eliminated. The County

now comes to Court and says that its sign code has been fixed again, so the

preliminary injunction is no longer necessary.

But the County’s position is internally inconsistent. The County admits that

the former sign code cannot apply to Citizens’ signs. E.g., Doc. No. 121, pp. 6 (“the

County cannot be enjoined from enforcing a provision that no longer exists”), 8

(“there is no reason to believe that the County would attempt to resurrect the version

of Section 17.52.520(A) that the Court found to be objectionable”). Nonetheless,

the County has unequivocally declared that it wants the injunction lifted so it can

enforce the sign code against Citizens. Doc. No. 116, pp. 2 (“the County should

not be prohibited from enforcing [the sign code] against Plaintiffs”), 3 (“before the

County can enforce its constitutional ban on offsite billboards, the Court must

dissolve the Preliminary Injunction”), 4 (“the 2014 preliminary injunction should

be dissolved so that the County is able to enforce its constitutional billboard ban

against Plaintiffs”). The County’s manifest intention to enforce its sign code against

Citizens is enough to justify continuing the preliminary injunction.

The County appears to try to rationalize its argument by suggesting that

because the Court found the stand-alone provisions of the general billboard ban at

17.52.515 constitutional, it can enforce it against Citizens regardless of any other



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ruling by the Court. The County ignores the Court’s grant of summary judgment

in favor of Citizens on the grounds that 17.52.520(A) provided an unconstitutional

exemption to 17.52.515. Under Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015),

17.52.515 was itself facially unconstitutional because the content-based exemption

for government speakers at section 520(A) failed strict scrutiny. Reed, 135 S. Ct.

at 2227 (explaining exemptions to the Town of Gilbert’s sign ban are content-based,

and therefore the entire sign code is content-based).

Instead, of dissolving the preliminary injunction, the Court should accept the

County’s invitation to modify the injunction to comport with the order granting

summary judgment. See, Doc. No. 121, p. 5 (“[S]ound judicial discretion may call

for modification of the terms of an injunction decree if the circumstances, whether

of law or fact, obtained at the time of its issuance have changed or new ones have

arisen.”) (quoting Sys. Fed’n No. 91 Ry. Employees’ Dep’t v. Wright, 364 U.S. 642,

647–648 (1961)).1 A proposed new preliminary injunction with the same scope is

submitted herewith. The only difference is that the grounds for relief conform with

the Court’s grant of summary judgment to Citizens holding 17.52.520(A)

unconstitutional.

However, the Court need not do so. The parties now agree that “the Court

could enter judgment in favor of Plaintiffs with an injunction prohibiting the County

from enforcing Section 17.52.520(A) as currently enacted [as of August 2016].”

Doc. No. 112, p. 3. Concurrently with this opposition, Citizens also submits a new

proposed judgment with a narrow permanent injunction prohibiting the County

from enforcing the sign code that was in force at the time this action was filed, and

providing nominal damages. Since the County has agreed that it should be enjoined

from enforcing the former sign code, this new proposed judgment should bring the

1 The County has agreed that Citizens may seek relief from the Court modifying the preliminary injunction in response to the instant motion without filing a separate motion on its own behalf. Decl. Furman, ¶ 2; Ex. A.



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action to an end without the need for a continuing preliminary injunction.

II. LEGAL ARGUMENT

A. The County Still Wants to Enforce the Sign Code Against Citizens

Citizens erected its signs over two years ago. The Court issued the

preliminary injunction because the County tried to enforce its unconstitutional sign

code against Citizens, and demanded that Citizens remove its signs. In the absence

of a preliminary injunction, the County will enforce its unconstitutional sign code

against Citizens and again try to have those signs removed. The County has already

said it will enforce its sign code against Citizens as soon as the injunction is lifted.

Doc. No. 116, pp. 2, 3, 4.

In the face of these facts, the County’s mootness analysis is inapposite.

Injunctive relief is only mooted by a change in the law if the risk to the litigant

presented by the enjoined conduct no longer exists. E.g., Outdoor Media Group,

Inc. v. City of Beaumont, 506 F.3d 895, 901 (9th Cir. 2007). In each case cited by

the County arguing mootness, the enjoined conduct pertained only to harms flowing

from the unconstitutional statute itself. E.g., Native Vill. of Noatak v. Blatchford,

38 F.3d 1505, 1509 (9th Cir. 1994) (mooting challenge to statute treating Native

villages as racial groups, not political entities).

Here, the risk presented to Citizens is the same as it was at the time the

injunction first issued. The County has explicitly and unequivocally stated that it

will seek to abate the signs as soon as the injunction is lifted. The County’s effort

to abate the signs would not be legitimate under any circumstances. The old sign

code cannot apply to Citizens’ signs because it has been repealed, and the new sign

code—in addition to being irrelevant here—cannot apply to Citizens’ signs because

they were built before the new sign code was enacted.

This is the same factual scenario faced in Valley Outdoor, Inc. v. City of

Riverside, 446 F.3d 948 (9th Cir. 2006). In Valley Outdoor, the Ninth Circuit

approved of the trial court’s injunction prohibiting enforcement of the old



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ordinance, even as moot, and concluded, “the Amended Ordinance, as a matter of

law, does not apply to Valley’s signs, which Valley installed prior to the Amended

[ ] Ordinance’s effective date.” Valley Outdoor, 446 F.3d at 953.

The same result should be ordered here. The County will seek to abate

Citizens’ signs as soon as the injunction is lifted. There is no legitimate basis for

the County to do so because there is no sign code that can apply to Citizens’ signs

as a matter of law. As in Valley Outdoor, the imminent threatened removal of

Citizens’ signs presents a First Amendment injury which is irreparable as a matter

of law. S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir. 1988). In

light of the clear evidence of the County’s intentions and the harm to Citizens, the

Court’s prior concerns that this argument is premature (Doc. No. 105, pp. 12–13)

have been satisfied by the current state of the record. The County must still be

enjoined from enforcement of any sign code against Citizens because there is no

legitimate enforcement action that the County can take, yet it explicitly threatens to

do so.

B. The County’s Sign Code Cannot Be Enforced Against Citizens

Citizens has signs that were erected when the sign code was unconstitutional.

Although the Court only issued summary judgment in favor of Citizens as to one

unconstitutional provision in the sign code (17.52.520(A)), since that provision

provided an exemption from the otherwise constitutional billboard ban, the ban

itself is subject to the same analysis as a content-based speech restriction and fails

strict scrutiny for the same reasons. Reed, 135 S. Ct. at 2227; Metromedia, Inc. v.

City of San Diego, 453 U.S. 490, 514–517 [101 S. Ct. 2882, 69 L. Ed. 2d 800]

(1981) (explaining that a “ban” on signs is not a ban if some signs are permitted,

and if signs are permitted based on content, the entire “ban” is taken “out of the

domain of time, place, and manner restrictions”). See also, Solantic, LLC v. City of

Neptune Beach (11th Cir. 2005) 410 F.3d 1250, 1268–1269 (“Because its

enumerated exemptions create a content-based scheme of speech regulation that is



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not narrowly tailored to serve a compelling government purpose, [the] sign code

necessarily fails to survive strict scrutiny.”).

“An unconstitutional law is void, and is as no law.” Montgomery v.

Louisiana, 136 S. Ct. 718, 731 (2016). Since the sign code in effect at the time the

signs were erected is void, it cannot be enforced against Citizens. Likewise, the

current sign code, although not challenged in this case, cannot be enforced against

Citizens as a matter of law because it was enacted after Citizens’ signs were built.

Valley Outdoor, 446 F.3d at 953.

While Citizens does not challenge the current sign code, it is relevant to this

discussion because the inapplicability of the current sign code forecloses the

possibility that any sign code can be enforced against Citizens. Since no sign code

can be enforced against Citizens, but the County imminently threatens to enforce

against Citizens as soon as the injunction is lifted, the injunction should remain.

C. The Court Should Enjoin Enforcement of the Unconstitutional

Sign Code

Citizens requests that the Court amend the current preliminary injunction to

reflect the status of this case, and the fact that the former sign code cannot be

enforced against Citizens. As discussed above, there is no sign code that can be

enforced against Citizens, yet the County expressly threatens to do so as soon as the

injunction is lifted. The injunction should be amended as suggested in the

concurrently lodged proposed amended injunction to enjoin the County from

enforcing the unconstitutional former sign code.

D. The Court Should Issue Judgment as Agreed by the County

In the alternative, the preliminary injunction does not need to be amended if

the Court issues judgment—which would automatically dissolve the preliminary

injunction. The County has agreed that the Court could enter judgment on its ruling

on summary judgment now.

The County has suggested that “The only provision of the County’s zoning



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ordinance found invalid was Section 17.52.520(A), and thus the only permanent

injunction that could be justified would prohibit the County from enforcing that

provision.” (Doc. No. 112, pp. 1–2.) The County further agreed that Citizens is

entitled to judgment: “the Court could enter judgment in favor of Plaintiffs without

the need for a permanent injunction. Alternatively, the Court could enter judgment

in favor of Plaintiffs with an injunction prohibiting the County from enforcing

Section 17.52.520(A) as currently enacted [as of August 19, 2016, before the

amendment to 520(A)].” (Id., pp. 2–3.) Citizens therefore proposes that Court enter

judgment in its favor as suggested by the County.

In addition, Citizens contends, and the County disagrees, that it is entitled to

nominal damages. The County previously contended, without support, that nominal

damages here are “neither required nor appropriate.” To the contrary, this case

presents the archetypal example of a case for nominal damages. Citizens has not

suffered actual injury because, through this lawsuit, it signs remain up. Because

Citizens was able to vindicate its rights though this action, it is entitled to nominal

damages regardless of whether an injunction of any stripe is necessary. Memphis

Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308, fn. 11 (1986); Jacobs v. Clark Cty.

Sch. Dist., 526 F.3d 419, 426 (9th Cir. 2008) (quoting Carey v. Piphus, 435 U.S.

247, 266 [98 S. Ct. 1042, 55 L. Ed. 2d 252] (1978)).

The repeal of the unconstitutional sign code emphasizes Citizens’ success in

this case and has no bearing on whether Citizens’ claims for nominal damages are

moot. E.g., O’Connor v. Denver, 894 F.2d 1210, 1216 (10th Cir. 1990) (“repeal

and amendment of the Code did not moot plaintiffs’ claim for nominal damages”).

Since the County has agreed that Citizens is entitled to judgment, and further

that a permanent injunction enjoining enforcement of the former sign code is

appropriate, Citizens’ proposed judgment is essentially stipulated to. While the

County would most likely argue that at the time it suggested a permanent injunction

was proper, 17.52.520(A) had not yet been repealed, the County’s further position



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that it is entitled to enforce against Citizens demonstrates the continuing need for

permanent injunction.

III. CONCLUSION

In light of the foregoing, Citizens respectfully requests the Court deny the

County’s motion to dissolve the preliminary injunction and issue a modified

preliminary injunction with the same scope as the current injunction as lodged

concurrently herewith; or, in the alternative, issue judgment on the July 8, 2016

summary judgment order as lodged concurrently herewith.

DATED: November 8, 2016 JOSHUA R. FURMAN LAW CORP.

By: /s/ Joshua R. Furman

JOSHUA R. FURMAN Attorney for Plaintiffs, Citizens for Free Speech, LLC & Michael Shaw


[Proposed] Judgment

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Plaintiffs,

v.


CASE NO. 3:14-cv-02513

[PROPOSED] JUDGMENT

Case 3:14-cv-02513-CRB Document 123-4 Filed 11/08/16 Page 1 of 2 Case: 18-15970, 07/24/2018, ID: 10953821, DktEntry: 11-2, Page 27 of 114(34 of 122)

1 [Proposed] Judgment

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The Court, having granted in part Plaintiffs Citizens for Free Speech, LLC

and Michael Shaw’s Motion for Summary Judgment for the reasons stated therein

(Doc. 105), hereby ENTERS JUDGMENT for Plaintiffs and against Defendant

County of Alameda in the nominal amount of $1.00 (one dollar).

The Court further orders that Defendant the County of Alameda, its

employees, agents, officers, managers, delegates, or assigns, and those in active

concert or participation with it or them who have actual notice of this Permanent

Injunction, which notice Defendant is obligated to provide, ARE HEREBY

FOREVER ENJOINED AND PROHIBITED from any and all conduct in

enforcement of former section 17.18.130 and current section 17.52.515 the three

billboards erected at 8555 Dublin Canyon Road in Alameda County (the “Parcel”)

on or about June 1, 2014 (the “Signs”) that prohibits display of the Signs, that

encumbers the right to display the Signs, interferes with the practical ability to

display the Signs, or penalizes or punishes Plaintiffs and/or Plaintiffs’ property,

and/or Plaintiffs’ successors in interest to the Parcel, relating to the Signs, including

any abatement action pursuant to said sections.

Plaintiffs are to submit a memorandum of costs and any motion for attorneys’

fees within 14 days of entry of this Judgment.

IT IS SO ORDERED.

Dated: ___________________ By: _____________________________ HON. CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

Case 3:14-cv-02513-CRB Document 123-4 Filed 11/08/16 Page 2 of 2 Case: 18-15970, 07/24/2018, ID: 10953821, DktEntry: 11-2, Page 28 of 114(35 of 122)

EXHIBIT F


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Def.’s Notice of Motion & Motion to Dissolve Preliminary Injunction; Memo. of Ps & As in Support CASE NO. 3:14-cv-02513-CRB

MATTHEW D. ZINN (State Bar No. 214587) WINTER KING (State Bar No. 237958) SARA A. CLARK (State Bar No. 273600) SHUTE, MIHALY & WEINBERGER LLP 396 Hayes Street San Francisco, California 94102 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 [email protected] [email protected] [email protected] Attorneys for County of Alameda



CITIZENS FOR FREE SPEECH, LLC; MICHAEL SHAW,

Plaintiffs,

v. COUNTY OF ALAMEDA,

Defendant.

Case No. 3:14-cv-02513-CRB Defendant’s Notice of Motion and Motion to Dissolve Preliminary Injunction; Memorandum of Points and Authorities in Support


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1 Def.’s Notice of Motion & Motion to Dissolve Preliminary Injunction; Memo. of Ps & As in Support CASE NO. 3:14-cv-02513-CRB

Notice of Motion and Motion to Dissolve Preliminary Injunction

TO PLAINTIFFS CITIZENS FOR FREE SPEECH, LLC and MICHAEL SHAW:

PLEASE TAKE NOTICE that on Friday, November 18, 2016 at 10:00 a.m., before the

Hon. Charles R. Breyer, in Courtroom 6 of the above-entitled Court, 450 Golden Gate Avenue,

San Francisco, that Defendant the County of Alameda (“County”) will and hereby does move

the Court for an order dissolving the preliminary injunction issued on September 4, 2014. Dkt.

50 (“Preliminary Injunction”). This motion is based on this Notice of Motion and Motion to

Dissolve Preliminary Injunction, the Memorandum of Points and Authorities in Support of the

Motion to Dissolve Preliminary Injunction, the pleadings and papers on file herein, and upon

such other matters as may be presented to the Court prior to submission of the motion.

The County requests that this Court issue an order dissolving the preliminary injunction.

The County is entitled to this order because Plaintiffs did not prevail on the merits of the claims

on which the injunction was based. The injunction also cannot be based on the sole claim on

which Plaintiffs did prevail because that claim is now moot.

Memorandum of Points and Authorities

I. Introduction

In 2014, this Court entered a preliminary injunction prohibiting Defendant Alameda

County from enforcing two specified provisions of its sign ordinance against Plaintiffs’ three

signs. Since then, there have been changes in both law and fact that render the injunction

unnecessary and inappropriate. As a result, the Court should now dissolve the preliminary

injunction.

The injunction prohibits, pending trial on the merits, “any and all conduct in enforcement

of sections 17.18.130 and 17.54.080 [of] the Zoning Ordinance” against Plaintiffs as to the three

existing signs that formed the basis for this lawsuit. Dkt. 50. After the injunction was issued, the

County repealed the former version of section 17.18.130 and this Court held that Plaintiffs’

challenge to the provision is moot. Dkt. 105 (“Order Granting in Part and Denying in Part

Defendant’s Second Motion for Summary Judgment; Granting in Part and Denying in Part

Plaintiffs’ Motion for Summary Judgment”). Meanwhile, Plaintiffs abandoned their challenge to


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section 17.54.080. See Dkt. 71 at 9 n.9 (“Order Granting in Part and Denying in Part

Defendant’s Motion for Summary Judgment”). Because Plaintiffs’ challenges to the only

provisions covered by the injunction have been disposed of, Plaintiffs cannot prevail on the

merits of those challenges and thus the injunction should be lifted.

The injunction should also be dissolved because the only other provision that the Court

found to be constitutionally infirm on the parties’ cross-motions for summary judgment—an

exemption for government notices in section 17.54.520(A)—has now been repealed by the

County and replaced with a content- and speaker- neutral provision. Accordingly, Plaintiffs’

challenge to that provision is moot under established Ninth Circuit law. This Court has granted

summary judgment to the County on all other claims and thus no claim remains on which an

injunction could be based. For the same reason, there will be no “trial of this action” and

therefore the injunction, by its terms, can have no further operation. See Dkt. 50 at 2.

II. Statement of Facts and the Case

The salient facts and history of the case are set forth in the Court’s most recent order on

the parties’ cross-motions for summary judgment. Dkt. 105. Plaintiff Michael Shaw owns a

parcel of land in Alameda County. Dkt. 65-1, ¶ 2 (“Declaration of Michael Shaw in Support of

Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Preliminary

Injunction”). Plaintiff Citizens for Free Speech, LLC (“Citizens”) and Shaw entered an

agreement providing for the construction and display of three signs (the “Signs”) on the

property. Dkt. 64-2, ¶ 2 (“Declaration of Jeffrey Herson in Support of Ex Parte Application for

Temporary Restraining Order and Order to Show Cause re Preliminary Injunction”). Plaintiffs

constructed the Signs without obtaining any permits or approvals from the County. Dkt. 71 at 6.

In June 2014, the County issued a “Declaration of Public Nuisance—Notice to Abate,”

informing Shaw that the Signs violated sections 17.18.010 and 17.18.120 of the County’s

Zoning Ordinance, which regulate the use and development of the property. Dkt. 65-1, ¶¶ 4-6,

Ex. C. The notice instructed Shaw to remove the Signs or face abatement proceedings. Id..

Plaintiffs sued, alleging that various provisions of the Zoning Ordinance regulating signs

violated the free speech and equal protection provisions of the federal and California


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constitutions. See generally Dkt. 1 (“Complaint for Civil Rights Violation and Injunctive and

Declaratory Relief”).

In September 2014, this Court issued a preliminary injunction enjoining and prohibiting

the County, “pending trial of this action, from any and all conduct in enforcement of sections

17.18.130 and 17.54.080 [of] the Zoning Ordinance that prohibits Plaintiffs from displaying the

Signs, encumbers Plaintiffs’ right to display the Signs, interferes with Plaintiffs’ practical ability

to display the Signs, or penalizes or punishes Plaintiffs’ property relating to the Signs.” Dkt. 50

at 2 (footnote omitted). When the Court issued the injunction, Section 17.18.130 allowed the

County planning commission to grant a conditional use permit (“CUP”) for any non-conforming

use in a planned development (“PD”) district if doing so would not “materially change the

provisions of the approved land use and development plan.” Dkt. 34 at 13 (“Order Granting

Motion for Preliminary Injunction”). Section 17.54.080 authorized County officials to permit a

variance from the zoning ordinance if they found, among other things, that doing so would not

be detrimental to the public welfare. Id. The Court issued the injunction after concluding that

Plaintiffs were likely to succeed on the merits of their claim that Section 17.18.130 granted

County officials unfettered discretion to approve or deny CUPs, and there were no procedural

safeguards to ensure that the County would make discretionary approvals under Sections

17.54.080 and 17.18.130 in a timely manner. Id. at 15-17.1

The County then moved for summary judgment on all claims, which the Court granted

except as to two issues. Specifically, the Court denied the County’s motion for summary

judgment on Plaintiffs’ challenge to Section 17.18.130, because the “‘totality of the factors’

indicate[d] that County officials ha[d] unfettered discretion” under that provision to approve or

deny CUPs. Dkt. 71 at 14 (quoting Seattle Affiliate v. City of Seattle, 550 F.3d 788, 799 (9th Cir.

2008)). The Court also held that the County had not sufficiently addressed Plaintiffs’ equal

protection claims, and thus denied the County’s motion for summary judgment as to those

1 The Court also held that Plaintiffs were not likely to succeed on their claims challenging Sections 17.52.515, 17.30.240(A), 17.52.550, 17.30.210, 17.52.515, and 15.52.520. Dkt. 34 at 5-12.


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claims. Dkt. 71 at 30. The Court held that all other claims were either moot2 or lacking in merit

and thus appropriate for summary judgment in the County’s favor.3

Following the Court’s first summary judgment order, the County amended Section

17.18.130 of the Zoning Ordinance to authorize an official to require a conditional use permit

only where specific findings are made. Dkt. 105 at 4-5 The parties then filed cross-motions for

summary judgment on all remaining issues. Id. at 1. The Court held that the amendment

rendered moot Plaintiffs’ overbreadth challenge to section 17.18.130, as the amendment

“cure[d] the constitutional deficiencies that [Plaintiffs] alleged,” and granted summary judgment

for the County on that claim. Id.at 8-13 (citation and internal quotation omitted). However, the

Court held that Section 17.52.520(A), which permitted government officials to post notices

regardless of size and location while prohibiting private parties from posting similar signs, was

content based and could not survive strict scrutiny under the Equal Protection Clause. Id. at 22-

26. As a result, the Court granted summary judgment to Plaintiffs on that issue. Id. at 26.

On October 4, 2016, the County Board of Supervisors amended Section 17.52.520(A).

Dkt. 117, Ex. 1 (“Request for Judicial Notice in Support of Defendant County of Alameda’s

Status Report”). Instead of permitting only government officials to post signs, amended

17.52.520(A) now allows any person to place one unilluminated temporary sign, up to one

square foot in area, on any lot for up to ninety days. Id.

The Court held a status conference on October 14, 2016. At that conference, the Court

and the parties discussed an appropriate path forward, given the Court’s rulings on summary

judgment and the subsequent legislative changes adopted by the County. Specifically, the Court

2 Before filing its motion for summary judgment, the County amended section 17.52.520(R) (approval of signs at bus stops and transit shelters) and section 17.52.520(D) (approve of signs with “historical merit”) to remove any discretionary elements, rendering Plaintiffs’ overbreadth claims as to these sections moot. Dkt. 71 at 10-11. 3 The Court granted summary judgment as to Plaintiffs’ (1) as-applied challenges; (2) damages claims for violations of subsections 17.52.520(R) and (D); (3) unfettered discretion claim as to section 17.54.130; (4) facial First Amendment challenge to the billboard prohibition in section 17.52.515 and its “exceptions”; and (5) the state constitutional challenge to section 17.52.515. Dkt. 71 at 4-7, 14-29.


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granted the County’s oral request for leave to file a motion for reconsideration of its summary

judgment ruling in light of these changes, but instructed the County to first file its motion to

dissolve the preliminary injunction.4

III. Argument

A. The Court should dissolve the preliminary injunction.

A preliminary injunction is only appropriate if the party seeking it demonstrates that there

is a likelihood of success on the merits. Winter v. Natural Res. Def. Council, 555 U.S. 7, 21

(2008). “[S]ound judicial discretion may call for modification of the terms of an injunction

decree if the circumstances, whether of law or fact, obtained at the time of its issuance have

changed or new ones have arisen.” Sys. Fed’n No. 91 Ry. Employees’ Dep’t v. Wright, 364 U.S.

642, 647-48 (1961). “Because injunctive relief is drafted in light of what the court believes will

be the future course of events . . . a court must never ignore significant changes in the . . .

circumstances underlying an injunction, lest the decree be turned into an instrument of wrong.”

Salazar v. Buono, 559 U.S. 700, 714-15 (2010) (citation and internal quotation omitted). “A

party seeking modification or dissolution of an injunction bears the burden of establishing that a

significant change in facts or law warrants revision or dissolution of the injunction.” Sharp v.

Weston, 233 F.3d 1166, 1170 (9th Cir. 2000).

Here, there have been two significant changes in fact and law that warrant the dissolution

of the preliminary injunction: First, the Court has rejected all of the claims on which the

injunction was based. And second, the County has repealed the only Zoning Ordinance

provision that the Court found unconstitutional. As a result, the Court should dissolve the

preliminary injunction.

4 The Court’s 10/14/2016 Minute Order sets 11/18/2016 as the hearing date for Defendant’s “Motion for Reconsideration.” However, in light of the Court’s instruction at the status conference, Defendant is filing its Motion to Dissolve Injunction first, and the parties agreed to a briefing schedule for the motion to dissolve that would have that motion heard on 11/18/2016. Defendant will file its Motion for Reconsideration separately.


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1. The claims on which the injunction was based have been rejected by the Court or abandoned.

As discussed above, the basis for the Court’s order granting Plaintiffs’ motion for a

preliminary injunction was that Plaintiffs were likely to succeed on the merits of their challenges

to Sections 17.18.130 and 17.54.080. Dkt. 34 at 15-17. In September 2015, the County amended

Section 17.18.130 to limit its discretion to issue a CUP, requiring six specific findings. Dkt. 105

at 4-5. The Court subsequently concluded that these amendments, coupled with the time

limitations contained in the statewide Permit Streamlining Act, “cure[d] the constitutional

deficiencies that [Plaintiffs] alleged in connection with the original sign ordinance.” Dkt. 105 at

10 (quoting Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 901 (9th Cir.

2007)); Dkt. 71 at 18-20 (finding Permit Streamlining Act provides adequate procedures for

timely review). In addition, Plaintiffs dropped their challenge to Section 17.54.080. Dkt. 71 at 9

n.9; see also Dkt. 86 at 1 (“Notice of Motion and Motion for Summary Judgment”) (listing

bases for Plaintiffs’ summary judgment motion; no reference to section 17.54.080). Because

Plaintiffs’ challenge to Sections 17.18.130 and 17.54.080 have been resolved in the County’s

favor, the preliminary injunction should be dissolved. See Collum v. Edwards, 578 F.2d 110,

112 (5th Cir. 1978) (trial court retains authority to modify or dissolve preliminary injunction at

any time); A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1098 (9th Cir. 2002) (same).

2. Changed circumstances also demand dissolving the injunction: the County has now repealed Section 17.52.520(A), the only code provision that this Court held to be constitutionally infirm.

In fact, there is no remaining basis for any injunctive relief in this case because the only

provision that the Court found to be unconstitutional, Section 17.52.520(A), has been repealed.

The County’s repeal of that section completely moots Plaintiffs’ claim as to Section

17.52.520(A). The repeal means that Plaintiffs can have no prospective relief because the

County cannot be enjoined from enforcing a provision that no longer exists.

“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. As a general rule, if a

challenged law is repealed or expires, the case becomes moot.” Native Vill. of Noatak v.


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Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994); accord Maldonado v. Morales, 556 F.3d 1037,

1042 (9th Cir. 2009). As this Court has previously held, Dkt. 105 at 8, the repeal of a sign

ordinance challenged on First Amendment grounds is sufficient to moot claims seeking

prospective relief. See, e.g., Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 901-

02 (9th Cir. 2007) (ordinance enacted after lawsuit was filed repealed challenged ordinance and

thus mooted claims for prospective relief); Desert Outdoor Advertising v. City of Oakland, 506

F.3d 798, 808 (9th Cir. 2007) (same); Covenant Media of Cal., LLC v. City of Huntington Park,

377 F. Supp. 2d 828, 842 (C.D. Cal. 2005) (repeal of sign ordinance mooted preliminary

injunction motion).

Because the County repealed Section 17.52.520(A), there is no risk that the County will

deny speakers equal protection by allowing the government notices previously authorized by

that section. Accordingly, it would be improper (not to mention pointless) for the Court to enjoin

the County from applying the (repealed) section or to declare it invalid. See Outdoor Media, 506

F.3d at 901 (following repeal of challenged ordinance, “[b]ecause there is no longer any risk that

[plaintiff] will be subject to the challenged ordinance, there exists no live issue upon which the

court could issue prospective relief”).

Plaintiffs have not challenged the new text of Section 17.52.520(A), which allows “One

(1) unilluminated temporary sign, maximum one square foot in area, on each lot for up to 90

days.” Dkt. 117, Ex. 1. Regardless, it is clearly constitutional. It treats all speakers equally,

allowing any person to erect an allowable sign. It is content-neutral because it makes no

reference to the content of the allowed signs. Indeed, it does nothing more than describe the

allowable physical characteristics and location of the covered signs and such regulation has been

repeatedly held to be content-neutral. See, e.g., Reed v. Town of Gilbert, 135 S.Ct. 2218, 2233

(2015) (Alito, J., concurring) (describing the following as non-content-based regulation of signs:

“Rules regulating the size of signs,” “Rules regulating the locations in which signs may be

placed,” and “Rules distinguishing between lighted and unlighted signs”) .

Plaintiffs have cited a narrow exception to the rule that repeal moots a claim for

prospective relief where the repealed statute would be reenacted. Dkt. 118 at 2 (“Plaintiffs’


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Response to County of Alameda’s ‘Status Report’”) (citing, e.g., City of Mesquite v. Aladdin’s

Castle, Inc., 455 U.S. 283, 289 (1982)). It has no relevance here. As the Ninth Circuit held in

Native Village of Noatak, “The exceptions to this [general mootness rule] are rare and typically

involve situations where it is virtually certain that the repealed law will be reenacted.” 38 F.3d

at 1510 (emphasis added; citing City of Mesquite); see also Dkt. 105 at 8-9 (rejecting application

of exception to County’s repeal of Section 17.13.130). In this case, there is no reason to believe

that the County would attempt to resurrect the version of Section 17.52.520(A) that the Court

found to be objectionable.

For the same reason that Plaintiffs’ only remaining claim is moot, the preliminary

injunction can have no further effect given its plain language. The Court enjoined enforcement

by the County only “pending trial of this action.” Dkt. 50 at 2. Because all of Plaintiffs’ claims

have been rejected, abandoned, or mooted, there is nothing left to be decided at a trial.

Accordingly, the injunction has expired by its terms. This Court need only confirm that in ruling

on this motion.

IV. Conclusion

For all of these reasons, the County respectfully requests that the Court dissolve the

preliminary injunction issued on September 4, 2014.

DATED: October 26, 2016 SHUTE, MIHALY & WEINBERGER LLP By: /s/Matthew D. Zinn MATTHEW D. ZINN

Attorneys for County of Alameda


EXHIBIT G


Plaintiffs’ Response to County of Alameda’s “Status Report”

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Joshua R. Furman, Bar No. 225461 [email protected] JOSHUA R. FURMAN LAW CORPORATION 14724 Ventura Boulevard, Suite 509 Sherman Oaks, California 91403 Telephone: (818) 646-4300 Facsimile: (818) 646-4301 Attorney for Plaintiffs, CITIZENS FOR FREE SPEECH, LLC, MICHAEL SHAW




Plaintiffs,

v.


CASE NO. 3:14-cv-02513

PLAINTIFFS’ RESPONSE TO COUNTY OF ALAMEDA’S “STATUS REPORT”


1 Plaintiffs’ Response to County of Alameda’s “Status Report”

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Defendant County of Alameda (“County”) has been repeatedly found to have

an unconstitutional sign code. Each time, the County has amended the sign code to

try to get out of this lawsuit, dissolve the injunction barring enforcement of the

unconstitutional sign code, and begin enforcement proceedings against Plaintiffs

Citizens for Free Speech, LLC, Michael Shaw (collectively “Citizens”), and the

signs displayed by Citizens. The County’s instant post hoc demands for judgment

in its favor are neither procedurally appropriate nor justified on the merits.

First, the County’s “Status Report” filed October 7, 2016, is nothing more

than an untimely motion for reconsideration of the Court’s rulings on summary

judgment. Despite the Court’s order of November 7, 2014, setting the hearing for

summary judgment on June 19, 2015, the Court has now entertained four separate

dispositive motions in this case. Each time, the Court has denied judgment for the

County. Most recently, the Court granted summary judgment for Citizens on its

equal protection claims on July 8, 2016. Doc. No. 105.

The County now asks the Court to revisit that ruling three months later

because it has amended the sign code again. The time for the County to bring a

noticed dispositive motion is long past. This case needs to proceed to final

judgment. If the County wants to bring a motion for reconsideration, it may attempt

to do so, but a “status report” is an improper vehicle and no relief can be granted

thereon. The only issue before the Court is what relief will be accorded to Citizens

on the judgment.

Second, the County’s status report makes it crystal clear that a continuing

injunction is required. The County plainly states that the moment the injunction is

dissolved, it will bring illegitimate enforcement action against Citizens. E.g., Doc.

No. 116, p. 3:26–28 (“before the County can enforce its constitutional ban on offsite

billboards, the Court must dissolve the Preliminary Injunction”). The County

cannot enforce its sign code, including the broad billboard ban, against Citizens’

signs because at the time Citizens’ signs were erected the code was unconstitutional


2 Plaintiffs’ Response to County of Alameda’s “Status Report”

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and was “as no law.” Montgomery v. Louisiana, 136 S. Ct. 718, 731 (2016). The

County suggests that it may enforce the billboard ban at section 17.52.515 against

Citizens because that speech restriction was upheld, but because the Court held that

the public speaker exemption to the ban was unconstitutional, the ban cannot be

enforced against Citizens. Any attempt to enforce either the old unconstitutional

sign code or the new, inapplicable and untested sign code against Citizens is

improper and must be enjoined.

Third, the County is wrong that amending its sign code moots Citizens’

causes of action. While nonmonetary requests for relief as to an amended code

sections can be mooted, that does not moot the cause of action because Citizens has

requested monetary damages as well. Outdoor Media Group, Inc. v. City of

Beaumont 506 F.3d 895, 907 (9th Cir. 2007). As repeatedly requested by Citizens,

nominal damages are proper here.

Moreover, since the County has made manifest its intention to improperly

enforce the new sign code against Citizens in the absence of an injunction, this case

falls within the exceptions to mooting a request for injunctive relief upon

amendment of an unconstitutional law articulated by the Supreme Court and the

Ninth Circuit. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982);

Northeast Fla. Chapter of Associated Gen. Contractors of Am. v. City of

Jacksonville, 508 U.S. 656, 661–662 (1993); Valley Outdoor, Inc. v. City of

Riverside, 446 F.3d 948, 953 (9th Cir. 2006) (as to injunctive relief).

Last, the County’s amended ordinance does not go into effect until November

3, 2016. RJN ISO Status Report, Doc. No. 117, p. 7 (“This ordinance shall take

effect an be in force thirty (30) days from and after the date of passage … .”). Even

if any relief is available based on the amendment, it cannot be granted now.

///


EXHIBIT H


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RJN ISO Def.’s Status Report CASE NO. 3:14-cv-02513-CRB

MATTHEW D. ZINN (State Bar No. 214587) WINTER KING (State Bar No. 237958) SARA A. CLARK (State Bar No. 273600) SHUTE, MIHALY & WEINBERGER LLP 396 Hayes Street San Francisco, California 94102 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 [email protected] [email protected] [email protected] Attorneys for Defendant County of Alameda



CITIZENS FOR FREE SPEECH, LLC; MICHAEL SHAW,

Plaintiffs,

v. COUNTY OF ALAMEDA,

Defendant.

Case No. 3:14-cv-02513-CRB Request for Judicial Notice in Support of Defendant County of Alameda’s Status Report


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1 RJN ISO Def.’s Status Report CASE NO. 3:14-cv-02513-CRB

Defendant County of Alameda respectfully requests that the Court take judicial notice,

pursuant to Federal Rule of Evidence 201, of the following document:

1. Alameda County Ordinance 2016-51, An Ordinance Amending Chapter 17.52.520 of the Alameda County General Ordinance Code to Relating to Signs Allowed in All Districts, a true and correct copy of which is attached as Exhibit 1.

MEMORANDUM OF POINTS AND AUTHORITIES

Rule 201(d) of the Federal Rules of Evidence mandates that federal courts take judicial

notice of qualifying facts upon a properly supported request by a party. Rule 201(b)(2)

authorizes judicial notice of any fact that is “capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned.”

Exhibit 1 is Alameda County Ordinance 2016-51, which was adopted in order to amend

one of the County code provisions at issue in this litigation. Federal courts take judicial notice,

under subsection 201(b)(2), of the official acts of a public agency, such as this ordinance. Tollis,

Inc. v. County of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007) (“Municipal ordinances are

proper subjects for judicial notice”); Engine Mfrs. Ass'n v. South Coast Air Quality Management

Dist., 498 F.3d 1031, 1039 n. 2 (9th Cir. 2007) (taking judicial notice of a municipal ordinance

and stating that “[m]unicipal ordinances are proper subjects for judicial notice”); Santa Monica

Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir. 2006) (taking

judicial notice of Santa Monica Ordinances Nos. 2116 and 2117).

Exhibit 1 is relevant to this proceeding to show that the County amended the provision of

its zoning ordinance identified by this Court in its summary judgment ruling as violating the

Equal Protection Clause. The County requests that the Court take judicial notice of this

ordinance to inform its decision regarding how the case should proceed to final judgment.


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2 RJN ISO Def.’s Status Report CASE NO. 3:14-cv-02513-CRB

DATED: October 7, 2016 SHUTE, MIHALY & WEINBERGER LLP By: /s/ Winter King WINTER KING

Attorneys for County of Alameda

826125.1


EXHIBIT 1


ORDINANCE NO.: 2016-51

AN ORDINANCE AMENDING CHAPTER 17.52.520 OF THE ALAMEDA COUNTY GENERAL ORDINANCE CODE TO RELATING TO SIGNS ALLOWED IN ALL

DISTRICTS

The Board of Supervisors of the County of Alameda, State of California, does ordain as follows:

SECTION I

The Board of Supervisors makes the following findings in support of this Ordinance:

1. On July 1, 2016, the United State District Court, Northern District of California, issued an order concluding that Section 17.52.520.A of the Alameda County Ordinance Code violates the Equal Protection Clause of the United State Constitution.

2. The purpose of Section 17 .52.520.A as it currently exists in the Ordinance Code is to allow public officials to post signs in the course of their official duties.

3. In light of the Court's ruling , the County amends Section 17.52.520.A to allow for the posting of nearly all such signs, as these signs are typically no larger than one square feet, while doing so in a manner that complies with the Court's ruling.

4. This amendment would address the Court's ruling by allowing anyone, not just public officials, to post one temporary, unilluminated sign , not to exceed one square foot in area, on each lot for up to ninety days. Although the amendment could increase the total number of signs displayed in the County, the amendment's limits on size and duration would ensure that it continues to advance the underlying purposes of the County's ordinance, which include protection of aesthetic values and traffic safety.

SECTION II

Sections 17.52.520 of the Alameda County General Ordinance Code is hereby amended to read as follows:

17.52.520 Signs permitted

The following signs are permitted in any district and may be located in required yards, other sign control provisions notwithstanding; and need not be included in any computation of permitted aggregate sign area.

A. One (1) unilluminated temporary sign , maxim

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT...Jul 24, 2018 · Dkt. 116, Defendant County of Alameda’s Status Report I Dkt. 107, Plaintiffs’ [Proposed] Judgment and Permanent

Documents