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

338 F.Supp.3d 995

CITIZENS FOR FREE SPEECH, LLC ; Michael Shaw, Plaintiffs,

v.COUNTY OF ALAMEDA; Alameda East County Board of Zoning Adjustments; 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, N.D. California, Oakland Division.

Signed September 4, 2018

Frank Clayton Gilmore, Robison, Sharp, Sullivan & Brust Robison, Sharp, Sullivan & Brust, Reno, NV, R.S. Radford, Davis, CA, Timothy Vartkes Kassouni, Kassouni Law, Sacramento, CA, for Plaintiffs.

Matthew Dwight Zinn, Aaron Michael Stanton, Winter King, Shute, Mihaly and Weinberger, LLP, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Dkt. 44

SAUNDRA BROWN ARMSTRONG, Senior United States District Judge

Plaintiffs Citizens for Free Speech, LLC ("Citizens") and Michael Shaw ("Shaw") bring the instant action against the County of Alameda ("County") and County-related defendants, pursuant to 42 U.S.C. § 1983, to challenge Defendants' efforts to enforce certain local zoning ordinances with respect to three billboards ("Signs") that Shaw has allowed Citizens to display on his property. The First Amended Complaint ("FAC"), the operative pleading before the Court, alleges that the County's enforcement efforts violate Plaintiffs' right to free speech, due process and equal protection. The pleadings also allege that the County is foreclosed from enforcing its ordinances as a result of the judgment entered by District Judge Charles Breyer in Plaintiffs' prior lawsuit against the County, styled as Citizens for Free Speech v. County of Alameda, Civ. No. 14-2513 CRB ("Prior Action").

The parties are presently before the Court on Defendants' Motion to Dismiss the First Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 44. Defendants contend that Plaintiffs' claims are barred by res judicata and are otherwise without merit. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS the motion for the reasons set forth below.¹

I. BACKGROUND

A. THE PRIOR ACTION

In 2014, Shaw and Citizens entered into an agreement for the latter to construct and display billboards ("Signs") on Shaw's parcel of land ("Parcel"), located at 8555 Dublin Canyon Road, which is in an unincorporated area of the County. FAC ¶¶ 8-9, Dkt. 42. At that time, the Signs allegedly "displayed political messages which Plaintiffs considered to be contrary to the political idealogy espoused by County officials."Id. ¶ 10.²

On June 1, 2014, Citizens and Shaw filed a Complaint in this Court against the County. Plaintiffs alleged that certain zoning provisions contained within the County Code of Ordinances (collectively referred to as "Zoning Ordinance") are unconstitutional. The Complaint sought declaratory and injunctive relief against the County, pursuant to section 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. The action was assigned to Judge Charles Breyer.

On June 2, 2014, the Alameda County Community Development Agency sent Shaw a Declaration of Public Nuisance—Notice to Abate ("2014 Notice"). FAC Ex. A, Dkt. 42. The 2014 Notice states that the "unlawful signs (billboards)" displayed on the Parcel violate Alameda County Code of Ordinances ("Code") sections 17.18.010 and 17.18.120, and that the failure to remove the billboards will result in escalating monetary penalties. Id. ³

Shortly after commencing the action, Plaintiffs moved for a preliminary injunction to enjoin the County from proceeding with the abatement process. No. 14-2513 CRB, Dkt. 50. Judge Breyer granted the motion, finding that Plaintiffs were "likely to succeed on their challenges to sections 17.18.130 and 17.54.080 of the [Code] ... 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.

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 the first summary judgment motion, the County voluntarily amended section 17.18.130 (one of the Code sections that formed the basis of the preliminary injunction order). Id., Dkt. 130 at 2. Thus, 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, Plaintiffs acknowledged that they had no further constitutional objections to the County's sign ordinances. Id., Dkt. 123 at 6 ("Citizens does not challenge the current sign code."). Subsequently, Judge Breyer granted the County's request to dissolve the preliminary injunction, which had enjoined the County from continuing with the abatement process. Id., Dkt. 125. He also rejected Plaintiffs' repeated requests for a permanent injunction "to enjoin enforcement of the unconstitutional sign code." Id., Dkt. 130 at 8.

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 his 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," i.e., 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, Judge Breyer noted that 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. In view of the fact that Plaintiffs failed to "achieve[ ] a change in the law that justifies the continued display of its billboards," the County indicated that it was considering pursuing the removal of Plaintiffs' signs once the preliminary injunction was dissolved. Id. at 8.

Judge Breyer entered final judgment in the Prior Action on March 8, 2017. No appeal was taken from the judgment.

B. THE INSTANT ACTION

On or about September 28, 2017, the Alameda County Community Development Agency Planning Commission sent Shaw a Declaration of Public Nuisance–Notice to Abate ("2017 Notice"). FAC ¶ 21 & Ex. 2. Like the 2014 Notice, the 2017 Notice alleges that the Signs violate Code section 17.18.120, id. ¶ 21, and orders Shaw to remove the signs within ten days from the postmarked date of the Notice or face the imposition of fines for non-compliance, id. Ex. 2. On November 22, 2017, the County sent Shaw a Notice of Administrative Hearing on Abatement of Nuisance. Id. ¶ 23. 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 violate the Code. Shaw Decl. ¶ 11 & Ex. C, Dkt. 23, 23-3.⁴

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 alleged the following claims, pursuant to 42 U.S.C. § 1983 : (1) violation of the right to free speech (claims one and three); (2) violation of due process (claim two); (3) violation of the right to equal protection (claim four); and (4) demand for attorney's fees under 42 U.S.C. § 1988 (claim five).

Shortly after filing their Complaint, Plaintiffs filed a motion for preliminary injunction in which they sought to enjoin the County from conducting an administrative hearing or other proceeding relating to the 2017 Notice or otherwise penalizing or prohibiting them from displaying the signs on the Parcel. They argued 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." Dkt. 22 at 13. Alternatively, Plaintiffs...