Citizens for Free Speech, LLC v. Cnty. of Alameda

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

Case No: C 18-00834 SBA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

May 9, 2018

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Dkt. 22

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

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

I. BACKGROUND

A. PRIOR LITIGATION

1. Factual Overview

Shaw owns real property located at 8555 Dublin Canyon Road, which is in an unincorporated area of Alameda County. Compl. ¶ 8, Dkt. 1. In 2014, Shaw and Citizens entered into an agreement for the latter to construct and display billboards on Shaw's property. Id. ¶¶ 9, 10. The signs "displayed political messages which Plaintiffs considered to be contrary to the political ideology espoused by County officials." Id. Plaintiffs acknowledge that "[t]he display of the signs was not allowed under the Code." Id. ¶ 11.¹

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

2. Substantive Proceedings

In response to the County's threat of action, Citizens and Shaw commenced the Prior Action in this Court on June 14, 2014. Id., Dkt. 1. The pleadings sought declaratory and injunctive relief against the County, pursuant to 42 U.S.C. § 1983, based on the following claims for relief: (1) violation of the right to free speech under the First Amendment; (2) violation of the right to Equal Protection under the Fourteenth Amendment; (3) violation of the right to free speech under the California Constitution; and (4) violation of the right to Equal Protection under the California Constitution. Id. The action was assigned to Judge Breyer.

Shortly after commencing the action, Plaintiffs moved for a preliminary injunction to enjoin the County from pursuing its scheduled abatement action. Id. Dkt. 50. JudgeBreyer granted the motion, finding that Plaintiffs were "likely to succeed on their challenges to sections 17.18.130 and 17.54.080 of the County's zoning ordinance, because section 17.18.130 afforded County officials unfettered discretion, and because there were no procedural safeguards to ensure that County officials would render decisions under sections 17.18.130 and 17.54.080 in a timely manner." Id., Dkt. 130 (citing Dkt. 34 at 15-17). The Court entered the injunction on September 30, 2014. Id., Dkt. 50.²

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

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

3. Motion for Attorney's Fees

At the conclusion of the Prior Action, Plaintiffs filed a motion for attorneys' fees, seeking recovery of $199,030, plus costs. Id., Dkt. 126. Due to the "poor results achieved" by Plaintiffs, the Court awarded only $1 in nominal damages and attorneys' fees in the "greatly reduced" amount of $38,116. Id. at 16, 17. In reaching its decision, Judge Breyer noted that, despite three years of litigation, Plaintiffs accomplished "very little" and achieved none of their objectives in filing suit. Id. at 15-16. In particular, they failed to realize "the primary goal of the litigation"; namely, the recovery of actual damages and a permanent injunction allowing them to maintain their signs without risking abatement proceedings by the County. Id. at 7-8. Aside from obtaining only $1 in nominal damages, Plaintiffs "only prevailed on one claim, after which the County voluntarily amended its ordinance to correct the unconstitutional language—and the amendment did not actually benefit [Plaintiffs]." Id. at 15-16 (emphasis in orig.). Moreover, Plaintiffs failed to obtain any injunctive relief, as the Court vacated the previously imposed preliminary injunction and refused to enter a permanent injunction. Id. at 8.⁴

B. THE INSTANT ACTION

On or about October 6, 2017, Plaintiff Shaw received a Declaration of Public Nuisance-Notice to Abate ("2017 Notice") from the Alameda County Community Development Agency Planning Commission. Shaw Decl. ¶ 10 & Ex. B, Dkt. 23, 23-2.The notice ordered that Shaw remove the signs within ten days from the postmarked date of the Notice or face the imposition of fines for non-compliance. Id. On November 22, 2017, the County sent Shaw a Notice of Administrative Hearing on Abatement of Nuisance. Shaw Decl. ¶ 11 & Ex. C, Dkt. 23, 23-3. The notice indicated that a hearing was set before the Alameda County East County Board of Zoning Adjustments ("Board of Adjustments"), to determine whether the signs on Shaw's property violated the Code. Id. Although the hearing was originally set for December 7, 2017, the parties stipulated to postpone the hearing pending resolution of the instant motion. Kassouni Decl. ¶ 2, Dkt. 25.

On February 2, 2018, Plaintiffs filed the instant action against the County and the Board of Adjustments, as well as Frank J. Imhoff, Scott Beyer and Matthew B. Ford, in their official capacities as members of the Board of Adjustments.⁵ The Complaint alleges four substantive claims, pursuant to 42 U.S.C. § 1983: (1) violation of the right to free speech; (2) violation of due process; (3) violation of the right to free speech; and (4) violation of the Equal Protection Clause. Plaintiffs' fifth claim is a request for attorney's fees under 42 U.S.C. § 1988.⁶

Plaintiffs have now filed a motion for preliminary injunction in which they seek to enjoin Defendants from conducting an administrative hearing or other proceeding relating to the 2017 Notice or otherwise penalizing or prohibiting them from displaying the signs on Shaw's property. Pls.' Mot. at 2. They argue that "[b]ecause the [Prior Action] resulted in a valid, final judgment on the merits, further litigation between the parties on the application of the County's sign ordinance to Plaintiffs' signs is barred by long-recognized principles of res judicata." Id. at 13. Alternatively, Plaintiffs assert that Defendants cannot proceed with administrative abatement proceedings because they failed to file acounterclaim to challenge the validity of Plaintiffs' signs in the Prior Action. Id. Defendants dispute Plaintiffs' contentions and oppose their motion.⁷

II. LEGAL STANDARD

To obtain a preliminary injunction, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary relief; (3) that the balance of equities tips in the moving party's favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is an "extraordinary and drastic remedy" that may be granted only upon a "clear showing" that the movant is entitled to such relief. Mazurek v. Armstrong, 520 U.S. 968, 972 ...