Norcal Outdoor Media, LLC v. Toks Omishakin

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 2022
• Docket: 21-15877
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 28 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORCAL OUTDOOR MEDIA, LLC, No. 21-15877

Plaintiff-Appellant, D.C. No. 2:19-cv-02338-JAM-DB v.

TOKS OMISHAKIN, Director of the MEMORANDUM* California Department of Transportation,

Defendant-Appellee,

and

XAVIER BECERRA, Attorney General of the State of California,

Defendant.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted February 17, 2022 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: SILER,** S.R. THOMAS, and CALLAHAN, Circuit Judges.

NorCal Outdoor Media, LLC (NorCal) appeals from an order dismissing its

challenge to the constitutionality of several provisions of the California Outdoor

Advertising Act (OAA), CAL. BUS. & PROF. CODE §§ 5200 et seq., a statutory

scheme administered by the California Department of Transportation (Caltrans).

We have jurisdiction under 28 U.S.C. § 1291, and review de novo a district court’s

decision to dismiss a case for lack of Article III standing. Maya v. Centex Corp.,

658 F.3d 1060, 1067 (9th Cir. 2011). We affirm.

To establish standing, a “plaintiff must have (1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578

U.S. 330, 338 (2016). The sufficiency of a plaintiff’s allegations is judged

according to “the manner and degree of evidence required at the . . . stage[ ] of the

litigation” at which the standing issue arises. Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992). “‘Where, as here, a case is at the pleading stage, the plaintiff

must clearly . . . allege facts demonstrating each element’ of standing.” McGee v.

** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 S-L Snacks Nat'l, 982 F.3d 700, 705 (9th Cir. 2020) (quoting Spokeo, Inc., 578

U.S. at 338).

Although special concerns exist in the First Amendment context, see LSO,

Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000), we have nonetheless reaffirmed

that “the rigid constitutional requirement that plaintiffs must demonstrate an injury

in fact to invoke a federal court's jurisdiction” endures. Lopez v. Candaele, 630

F.3d 775, 785 (9th Cir. 2010) (quoting Dream Palace v. County of Maricopa, 384

F.3d 990, 999 (9th Cir. 2004)). This requirement applies regardless of whether a

plaintiff purports to assert an as-applied challenge or an overbreadth challenge

seeking facial invalidation of a law. See Get Outdoors II, LCC v. City of San

Diego, 506 F.3d 886, 891 (2007) (“We therefore agree . . . that the three Lujan

elements [injury, causation, and redressability] still apply in the overbreadth

context.”).

The district court properly concluded that NorCal has not demonstrated a

pre-enforcement injury from the OAA regulatory provisions, as it has failed to

allege a “concrete plan” to violate these provisions. Lopez, 630 F.3d at 787

(quoting Thomas v. Anchorage Equal Rts. Comm'n, 220 F.3d 1134, 1139 (9th Cir.

2000) (en banc)). NorCal’s complaint states that NorCal is “prepared, ready,

willing, and able to immediately place messages on the Sign which violate § 5402

3 of the OAA [the obscenity provision] and messages which satisfy none of the

exclusions or exemptions provided by the OAA to its prohibition of advertising

displays.” This conclusory assertion falls short of the requirement that allegations

of injury be sufficiently concrete such “that a court need not speculate as to the

kinds of . . . activity the [plaintiffs] desire to engage in or as to the contents of their

proposed public statements or the circumstances of their publication.” Id. (internal

quotation marks omitted). Further, NorCal admits that it has neither been warned

of imminent enforcement nor been subjected to enforcement actions under the

OAA in the past. See id. at 786 (noting that a “specific warning or threat to initiate

proceedings” or a “history of past prosecution or enforcement” is “strong

evidence” of a pre-enforcement injury). It has not identified any specific content it

wishes to place on outdoor advertising, nor has it applied for any permit to do so.

Speculative injury cannot sustain a claim of pre-enforcement injury.

NorCal also fails to allege facts sufficient to support its claim that the

OAA’s permitting scheme gives reviewing officials “unbridled discretion . . . over

whether to permit or deny expressive activity,” City of Lakewood v. Plain Dealer

Publ’g Co., 486 U.S. 750, 755 (1988). First, contrary to NorCal’s representations,

the OAA’s implementing regulations mandate that a permit must be granted or

denied within a set time frame. CAL. CODE REGS. tit. 4 § 2422(b)(4) (requiring a

4 permit be granted or denied within 60 days of the submission of a permit

application); see also Plain Dealer, 486 U.S. at 770 (noting that limits to officials’

discretion are recognized if “made explicit by textual incorporation, binding

judicial or administrative construction, or well-established practice”).

Second, it is unclear whether the OAA's obscenity provision in practice

provides reviewing officials with any discretion as to whether to grant or deny a

permit based on the proposed content of the sign. The forms that are submitted as

part of the permit application process do not appear to require applicants to provide

any information on the content of their proposed displays.1 To the extent the

content of proposed signs are not reviewed until after a permit application is

approved, this would obviate the concerns associated with prior restraints. See

Plain Dealer, 486 U.S. at 757 (noting that the concerns supporting "unfettered

discretion" standing are specific to situations where that discretion is "coupled with

the power of prior restraint"). And in any event, Caltrans has conceded in this

1 The Court takes judicial notice of the contents of the OAA’s permit application form pursuant to FED. R. EVID. 201. The permit application form is a public document available for download on Caltrans’ website. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (taking judicial notice of a city’s “Event Permit Application” form, which could be accessed on the city’s official website). The application requests a variety of information and supporting documentation, but nowhere requires a description of the proposed display’s content. The application form can be accessed here: https://dot.ca.gov/programs/traffic-operations/oda/forms. 5 litigation that the phrase "offend public morals or decency" in § 5402 is

unconstitutional and unenforceable as a result of the ruling in People v. Turner,

128 Cal. Rptr. 638, 639 (Cal. App. Dep’t Super. Ct. 1976).

The district court properly concluded that, because NorCal failed to

demonstrate an injury, it lacks standing to maintain this suit.

AFFIRMED.