Govan v. City of Clovis

MARSHAWN GOVAN, Plaintiff, v. CITY OF CLOVIS, et al., Defendants.

CASE NO. CV F 13-0547 LJO SMS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: October 7, 2013

ORDER TO DISMISS CLAIMS WITH

PREJUDICE AND JUDGMENT IN FAVOR

OF DEFENDANTS WEIBER AND WILLOW

(Doc. 38.)

PRELIMINARY STATEMENT TO PARTIES AND COUNSEL

Judges in the Eastern District of California carry the heaviest caseload in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. This Court cannot address all arguments, evidence and matters raised by parties and addresses only the arguments, evidence and matters necessary to reach the decision in this order given the shortage of district judges and staff. The parties and counsel are encouraged to contact United States Senators Diane Feinstein and Barbara Boxer to address this Court's inability to accommodate the parties and this action. The parties are required to consider, and if necessary, to reconsider consent to one of the Court's U.S. Magistrate Judges to conduct all further proceedings in that the Magistrate Judges' availability is far more realistic andaccommodating to parties than that of U.S. District Judge Lawrence J. O'Neill who must prioritize criminal and older civil cases. A Magistrate Judge consent form is available on this Court's website.

Civil trials set before Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Judge O'Neill is unavailable on the original date set for trial. If a trial trails, it may proceed with little advance notice, and the parties and counsel may be expected to proceed to trial with less than 24 hours notice. Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from outside the Eastern District of California. Case management difficulties, including trial setting and interruption, are avoided if the parties consent to conduct of further proceedings by a U.S. Magistrate Judge.

INTRODUCTION

Defendants City of Clovis ("City") and City police officers Vince Weiber ("Officer Weiber") and John Willow ("Officer Willow") seek to dismiss as insufficiently pled and legally barred pro se plaintiff Marshawn Govan's ("Mr. Govan's") claims to challenge the constitutionality and enforcement against him of the City's Sign Law.¹ Mr. Govan responds that his operative First Amended Complaint ("FAC") "pleads sufficient facts" to avoid dismissal. This Court considered the City and Officers Weiber and Willow's (collectively "defendants'") alternative F.R.Civ.P. 12 motions on the record without a hearing. See Local Rule 230(g). For the reasons discussed below, this Court DISMISSES all of Mr. Govan's claims, except his equal protection claim which defendants did not legitimately challenge until they filed their reply papers.

BACKGROUND²

Mr. Govan's Use Of Sign Wavers

Mr. Govan owns Liberty Tax Service which operates at 80 W. Bullard Avenue in the Crossroads Shopping Center in Clovis. Liberty Tax Service provides tax services during the January to April tax season.

Liberty Tax Service employs "wavers" who dress in Statue of Liberty or Uncle Sam costumes and wave small signs regarding tax services.

Prohibited Signs

The Sign Law prohibits:

1. "Moving signs" which have animation, including "moving, rotating" (section 9.4.203(b)(2)) and "[s]igns which are portable" (section 9.4.203(c));

2. Signs "within public spaces," including "any public street, sidewalk, parking lot, or right-of-way" (section 9.4.203(e)(1)); and

3. "Temporary signs," including "affixing of signs of a miscellaneous character, visible from a public way" (section 9.4.203(e)(8)).

On January 29 and 30, 2013, Mr. Govan met with City officials to request a temporary permit for tax season.

Mr. Govan's Citations

On January 31, 2013 at 11:30 a.m., two City police officers approached Liberty Tax Service's sign waver and took photographs. At 1:12 p.m., another City police officer approached the sign waver and told him to put the sign down or be arrested.

On February 1, 2013 at 5 p.m., Officer Weiber ticketed Mr. Govan for Sign Law violations of animated signs, signs on public sidewalk, and temporary signs.

During the morning of February 2, 2013, Liberty Tax Service's manager observed a City patrol vehicle parked near the Liberty Tax Service office. Later that afternoon, a City police officer stopped Liberty Tax Service's sign waver, took his photograph, and asked if the sign waver was aware that he was "in violation of the code."

On February 4, 2013, the City maintained a police patrol vehicle in front of Liberty Tax Service's office.

On February 8, 2013, Officer Weiber again ticketed Mr. Govan for Sign Law violations of animated signs, signs on public sidewalk, and temporary signs.

On February 10, 2013, Officer Willow and another City police officer entered Liberty Tax Service's office and ticketed Mr. Govan for Sign Law violations of animated signs, signs on public sidewalk, and temporary signs.

On February 11, 2013, Officer Willow approached Liberty Tax Service sign wavers, took their signs, and maintained a presence in the office during operations.

On February 13, 2013, Officer Weiber ticketed Mr. Govan for Sign Law violations of animated signs and temporary signs. On February 16, 2013, Officer Willow ticketed Mr. Govan for the same violations. The FAC notes that Mr. Govan's citations are numbered consecutively "because the sign code was not being enforced against any other."

The City Planning and Development Services issued a February 21, 2013 memo on sign code enforcement to note:

1. "The Clovis Police Department have [sic] been actively enforcing the Sign Ordinance in respect to temporary non-building mounted signs within specific target areas"; and

2. "Mr. Govan continues to display his signs and stated during the meeting that the citations are a part of doing business."

On February 27, 2013, the City police maintained a patrol vehicle in front of Liberty Tax Service's office.

Mr. Govan's Claims

The FAC alleges that defendants have demoralized Mr. Govan's business "by defamation of character due to this constant harassment which has affected business productivity by intimidating [Liberty Tax Service] employees and clients with police presence." The FAC alleges claims for violations of federal constitutional rights via 42 U.S.C. § 1983 ("section 1983") as well as California-based claims. The FAC's claims will bediscussed below.

DISCUSSION

F.R.Civ.P. 12(b)(6) Motion To Dismiss Standards

Defendants characterize the FAC as "generally the same" as Mr. Govan's previously dismissed original complaint. Defendants fault the FAC's claims as invalid and redundant.

A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9^th Cir. 1990); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7^th Cir. 1995). A F.R.Civ.P. 12(b)(6) motion "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9^th Cir. 2001).

In addressing dismissal, a court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Securities Litig., 536 F.3d 1049, 1055 (9^th Cir. 2008) (citation omitted). A court "need not assume the truth of legal conclusions cast in the form of factual allegations," U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643, n. 2 (9^th Cir.1986), and must not "assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897 (1983). A court need not permit an attempt to amend if "it is clear that the complaint could not be saved by an amendment." Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9^th Cir. 2005).

A plaintiff is obliged "to provide the 'grounds' of his 'entitlement to relief [which] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 554,127 S. Ct. 1955, 1964-65(2007) (internal citations omitted). Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, a complaint "must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7^th Cir. 1984)).

In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009), the U.S. Supreme Court explained:

. . . a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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