NOT FOR PUBLICATION NOV 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
GET OUTDOORS II, LLC, a Nevada No. 08-55005
Limited Liability Company d/b/a GET
OUTDOORS, L.L.C., in California, D.C. No. CV-03-01437-W
Plaintiff - Appellant,
CITY OF EL CAJON, California,
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted November 5, 2010
Before: GOODWIN and RAWLINSON, Circuit Judges, and SEABRIGHT,
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
Get Outdoors II, LLC, a Nevada limited liability company, appeals a grant
of summary judgment in favor of the City of El Cajon, California, on all claims.
Get Outdoors filed a dozen permit applications for the installation of outdoors
signs in El Cajon. El Cajon found that all of the applications were for signs that
would violate the city's sign area and height restrictions. Get Outdoors filed suit
against El Cajon claiming its sign ordinance and corresponding permitting
procedures were unconstitutional on their face and as applied with regard to the
First Amendment. Parties engaged in settlement negotiations before a Magistrate
Judge for six months. Get Outdoors claims these negotiations led to an oral
contract in the form of a settlement agreement.
The court below found that each of Get Outdoors' permit applications would
have violated El Cajon's constitutionally valid area and height restrictions. Unable
to redress its injuries, the court found that Get Outdoors did not have standing to
bring First Amendment claims. The court also found that no valid contract resulted
from settlement negotiations, given the absence of the mayor's signature on a
written settlement agreement. We affirm.
A previous case involving the same plaintiff and highly similar facts controls
here. See Get Outdoors II v. City of San Diego, 506 F.3d 886
(9th Cir. 2007). The
[End Page 2]
threshold question is whether Get Outdoors has standing to bring First Amendment
claims. Get Outdoors can point to denial of its permit applications by El Cajon as
injuries in fact, caused by defendant. But Get Outdoors cannot show how this court
could act to overturn denial of the permits, and thereby redress those injuries. Get
Outdoors lacÂµs standing to bring its First Amendment claims. See id. at 891, (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555
, 560-61 (1992)).
This court cannot overturn the denial of Get Outdoors permits because those
permits violated constitutionally valid restrictions. 'Size and height restrictions on
billboards are evaluated as content-neutral time, place and manner regulations.' Id.
at 893, citing Valley Outdoor, Inc. v. County of Riverside, 337 F.3d 1111
(9th Cir. 2003). When non-commercial speech may be involved, as here, such
restrictions 'must be narrowly tailored to serve a significant government interest,
and must leave open ample alternative channels of communication.' Id., citing
Flint v. Dennison, 488 F.3d 816
, 830 (9th Cir. 2007). The 35 foot height restriction
and the 300 square foot area restriction are narrowly tailored and leave open ample
alternative channels of communication.
An ordinance which prohibits billboards designed to be viewed from streets
and highways reasonably relates to traffic safety; and traffic safety is a significant
government interest. Metromedia, Inc. v. City of San Diego, 453 U.S. 490
[End Page 3]
(1981). As the El Cajon ordinance prohibited the billboards proposed by Get
Outdoors, a significant government interest was served by the ordinance and the
third and final prong of the time, place, and manner test is met.
As the size and height restrictions are constitutionally valid, and all permit
applications would have violated those restrictions, Get Outdoors injuries cannot
be redressed by this court and Get Outdoors, therefore, lacÂµs standing to bring its
First Amendment claims.
Regarding the settlement agreement, in a California general law city, 'The
mayor shall sign: . . . (b) All written contracts and conveyances made or entered
into by the city.' Cal. Gov't Code y 40602. Implicit in this law, contracts with a
general law city must usually be in writing and signed by the mayor. G.L.
Mezzetta, Inc. v. City of Am. Canyon, 78 Cal.App.4th 1087, 1093 (2000). A
contract entered into by a general law city outside of this legal authority is void and
unenforceable. See id. at 1092. Reasonable doubts about whether a general law
city has exercised contracting authority are construed against the exercise of such
authority. Id. When maÂµing a contract with a general law city in California, a party
is bound to taÂµe notice of limitations on the city's power to contract. Id. at 1094
[End Page 4]
El Cajon is a general law city. The parties do not dispute that there is no
written instrument signed by the mayor. Without the mayor's signature on a
written instrument, an enforceable contract in the form of a settlement agreement
does not exist.
[End Page 5]
Get Outdoors v. City of El Cajon, Case No. 08-55005 NOV 17 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur in the result.