Maldonado v. Kempton

Page 1169

422 F.Supp.2d 1169

Nano MALDONADO, Plaintiff, v. Will KEMPTON, in his capacity as Director of the California Department of Transportation, Defendant.

No. C 02 03167 CRB.

United States District Court, N.D. California.

March 23, 2006.

Dennis Scott Zell, Janet Fogarty & Associates, Burlingame, CA, for Plaintiff.

Daniel P. Weingarten, California Department of Transportation, Legal Division, Antonio R. Anziano, Barbara J. Wills, Bruce A. Behrens, David Gossage, State of California, Department of Transportation, San Francisco, CA, for Defendant.

MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

BREYER, District Judge.

In this section 1983 action plaintiff alleges that California's Outdoor Advertising Act ("the Act" or "COAA") violates the First Amendment on its face. Now pending before the Court are the parties' crossmotions for summary judgment. Having reviewed the memoranda submitted by the parties, and having had the benefit of oral argument, the Court DENIES defendant's motion for summary judgment to the extent defendant moves for summary judgment on plaintiffs facial challenge. The Court GRANTS plaintiffs motion for summary judgment to the extent plaintiff challenges the constitutionality of the Act on the ground that it impermissibly favors commercial over non-commercial speech in violation of the First Amendment.

BACKGROUND

I. Undisputed Facts

This case arises from a long-running dispute between plaintiff and the California Department of Transportation ("Caltrans") regarding the use of plaintiffs billboard. Plaintiff owns a commercial building located at 3600 Rolison Road adjacent to the southbound lanes of Highway 101 in Redwood City. In the mid-1950's a double-sided billboard was mounted on the roof of plaintiffs building.

COAA regulates billboards that are visible from and are placed near interstate and primary highways in California. See Cal. Bus. & Prof.Code § 5271. COAA section 5200 et seq., prohibits all billboard advertising along a "landscaped freeway" unless the billboards advertise goods or services available at the property on which the billboard is placed ("on-premises" advertising). Caltrans is responsible for enforcing COAA. In. October 1993, Caltrans cited plaintiff for violating COAA. Plaintiff was cited again in 1996. Plaintiff subsequently sought review by the California Outdoor Advertising Review Board. Plaintiff argued that his billboards (for Stanford Shopping Center, a Holiday Inn, and Skyway Cellular, among other businesses) were lawful on-premises advertising because the businesses advertised also leased space on the premises. The Board disagreed. Plaintiff still did not remove the offending advertisements and Caltrans filed suit in state court to abate a public nuisance, namely, the advertisements. Following a trial, the Superior Court entered an injunction enjoining plaintiff from displaying any advertising on his billboard without permission from Caltrans and generally enjoined plaintiff from displaying any on-premises advertising unless it was for business conducted on the premises.

Plaintiff subsequently placed a sign on his billboard reading "AVAILABLE FOR ON SITE USE 650-366-2979." The trial court found plaintiff in contempt. Plaintiff did not give up. Shortly thereafter he put up a sign saying "IN GOD WE TRUST" "WE PRAY FOR WORLD PEACE" "HELP STOP TERRORISM" and listing the phone numbers of the FBI and Red Cross among others. He also included "AVAILABLE FOR ON SITE USE 650-366-2979." The other side of the billboard advertised Habitat for Humanity. The State again instituted contempt proceedings. In February 2003, while this action was pending, the state court found that the Habitat for Humanity billboard and the "AVAILABLE FOR ON SITE USE" signs violated the permanent injunction and ordered plaintiff to pay a fine and the State's fees and costs. The court also determined that the "In God We Trust" display did not violate the injunction or the previous contempt orders.

II. Procedural History

In his initial complaint plaintiff challenged the constitutionality of several portions of the Act on its face and as applied to him. This Court dismissed the complaint on grounds of standing, claim preclusion, and the Roaker-Feldman doctrine. Plaintiff appealed some of the Court's rulings and the Ninth Circuit reversed and remanded the action to this Court for decision on the merits.

Plaintiff subsequently filed a First Amended Complaint. Plaintiff continues to challenge the constitutionality of COAA on its face and as applied. Among other things, plaintiff alleges that the Act chills publication of non-commercial speech and that past enforcement of the injunction against plaintiff has caused him to refrain from using his billboard to publish paid political advertisements and free religious messages.

For example, he alleges that during the 2004 election season he was interested in selling billboard space to political candidate, looking to publish political campaign messages. He was approached by a candidate for the California Assembly. The candidate's campaign offered to pay for use of plaintiffs billboard for political campaign messages on the condition that plaintiff guarantee that such advertising is legal. Plaintiff asked defendant to provide a written statement declaring that political advertising was permissible on the billboard. Defendant declined, stating that he could not give an opinion without first reviewing the copy to be published on the billboard. As a result, plaintiff refrained from publishing the campaign messages.

Plaintiff also alleges that the Act chilled and continues to chill him from displaying free religious messages during the holidays. Plaintiff was approached by a local theater group and asked to display messages such as "A WORLD AT PRAYER IS A WORLD AT PEACE," and "GOT FAITH?" Plaintiff wanted to include the names and addresses of local churches with the above display. He refrained from publishing this display for fear of violating the Act.

The Court previously ruled that the Act's distinction between "off-premises" and "on-premises" advertising is legal. The sole issue now before the Court is whether COAA prohibits non-commercial speech where it permits commercial speech, and if so, whether this prohibition renders the Act unconstitutional.

STANDARD OF REVIEW

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact: Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party satisfies its initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538; see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient"). Rather, the nonmoving party must go "beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)) (internal quotations marks omitted).

DISCUSSION

The question before the Court is whether COAA favors commercial over non-commercial speech in violation of the First Amendment.

I. Billboard Statutes Must Allow Non-Commercial Signs if They Allow On-Premises Commercial Signs

The leading case regarding First Amendment challenges to billboard ordinances is Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). Under Metromedia, "an ordinance is invalid if it imposes greater restrictions on noncommercial than on commercial billboards or regulates noncommercial billboards based on their content." National Advertising Co. v. City of Orange, 861 F.2d 246, 248 (9th Cir.1988) (citing Metromedia, 453 U.S. at 513, 516, 101 S.Ct. 2882). The San Diego ordinance at issue in Metromedia had an exception to its general ban on billboard advertising for on-premises commercial advertising; there was no similar exception for noncommercial advertising. The Supreme Court held the ordinance unconstitutional:

[t]he fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others .... [i]nsofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of non-commercial messages.

Metromedia, ...