Citizens for Free Speech, LLC v. County of Alameda

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CITIZENS FOR FREE SPEECH, LLC; No. 19-17448 MICHAEL SHAW, D.C. No. Plaintiffs-Appellants, 4:19-cv-01026-SBA

v. MEMORANDUM* COUNTY OF ALAMEDA,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted November 16, 2020 San Francisco, California

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

This is the third suit by Citizens for Free Speech and Michael Shaw

(collectively, “Plaintiffs”) challenging the County of Alameda’s efforts to abate

billboards that Plaintiffs erected on Shaw’s property in violation of Title 17 of the

County’s General Ordinance Code (“Zoning Ordinance”). The district court granted

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the County’s motion to dismiss Plaintiffs’ First Amendment free speech and

Fourteenth Amendment due process claims without leave to amend and declined to

exercise supplemental jurisdiction over Plaintiffs’ state law claims. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

1. The First Amendment claims are barred by claim preclusion. Identical

claims were litigated in Citizens for Free Speech, LLC v. County of Alameda

(“Citizens I”), No. 3:14-cv-02513-CRB (N.D. Cal. 2017), which resulted in a final

judgment on the merits. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan.

Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). Plaintiffs’ argument that preclusion

does not apply because the County had not yet initiated nuisance abatement

procedures under the Zoning Ordinance when Citizens I was decided is unavailing.

The nuisance abatement procedures are predicated on the same Zoning Ordinance

provisions challenged in the prior action. Plaintiffs’ claims therefore “were raised

or could have been raised in the prior action.” Owens v. Kaiser Found. Health Plan,

Inc., 244 F.3d 708, 713 (9th Cir. 2001) (cleaned up).

2. Plaintiffs failed to respond to the County’s contentions concerning the

due process claims in the County’s motion to dismiss, thereby abandoning those

claims. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 888 (9th Cir.

2010). In any event, the Fourteenth Amendment due process claims fail on the

merits. Plaintiffs have not identified “a denial of adequate procedural protections”

2 at the abatement hearing before the Board of Zoning Adjustments or the appeals

hearing before the Board of Supervisors. Brewster v. Bd. of Educ. of Lynwood

Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). And, because Plaintiffs do

not dispute that the signs are illegal under the Zoning Ordinance, it is also unclear

how additional hearing procedures would have mitigated “the risk of an erroneous

deprivation.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Plaintiffs’ Federal

Rule of Civil Procedure 13(a) due process theory—which would require the County

to pursue nuisance abatement proceedings in federal court once a constitutional

challenge is raised—is unsupported by any authority and was impliedly rejected by

this Court in Citizens for Free Speech, LLC v. County of Alameda (“Citizens II”),

953 F.3d 655, 657-58 (9th Cir. 2020), which affirmed the dismissal of Plaintiffs’

second suit against the County under Younger v. Harris, 401 U.S. 37 (1971), because

it improperly sought to enjoin ongoing state administrative proceedings.

3. Because the district court dismissed all federal claims, it did not abuse

its discretion in declining to assert supplemental jurisdiction. See 28 U.S.C.

§ 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).

4. The district court did not abuse its discretion in denying leave to amend

given the legal deficiencies in Plaintiffs’ federal claims. See Bell v. City of Kellogg,

922 F.2d 1418, 1425 (9th Cir. 1991).

3 AFFIRMED.1

1 The County’s motion to take judicial notice, Dkt. 14, is GRANTED.