Architectureart, LLC v. City of San Diego ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARCHITECTUREART, LLC, No. 17-55645
Plaintiff-Appellant,
D.C. No.
v. 3:15–cv–1592–BAS–NLS
CITY OF SAN DIEGO,
MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Cynthia Bashant, District Judge, Presiding
Argued and Submitted November 13, 2018
Pasadena, California
Before: PAEZ, PARKER, ** and CLIFTON, Circuit Judges.
ArchitectureArt, LLC (“AArt”) appeals the grant of summary judgment to the
City of San Diego (the “City”) as to AArt’s Equal Protection, Due Process, First
Amendment, and Intentional Interference with Prospective Economic Advantage
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for
the United States Court of Appeals for the Second Circuit, sitting by designation.
(“IIPEA”) claims.
Equal Protection Claims
To bring a successful Equal Protection claim premised on selective
enforcement of the San Diego sign ordinance (the “Ordinance”), AArt was required
to demonstrate that the City’s enforcement had a discriminatory effect and that those
enforcing the Ordinance were motivated by a discriminatory purpose. See
Rosenbaum v. City & Cnty. of San Francisco, 484 F.2d 1142, 1152 (9th Cir. 2007).
AArt did not raise a genuine issue of material fact as to whether the City acted
with a discriminatory purpose. Its arguments rest heavily on a series of e-mails,
which AArt claims evidence a pay-to-play scheme between the City and Comic-
Con. These e-mails, however, had little to do with sign permitting or the challenged
Ordinance. Further, none of them can reasonably be read to show that the City’s
enforcement of the Ordinance was motivated by a discriminatory purpose.
AArt has also not demonstrated that the enforcement of the Ordinance had a
discriminatory effect since it failed to identify a similarly situated class against
which its claims can be compared. Specifically, AArt presented insufficient
evidence that the City refrained from citing advertisers who had paid fees to Comic-
Con and targeted advertisers who had refused to pay such fees.
Due Process Claims
As to its Due Process claims, AArt has not demonstrated improper delegation
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of power to Civic San Diego (“Civic”). Cities in California may delegate ministerial
or administrative functions to an administrative body—or even a private or nonprofit
entity—so long as the city prescribes standards to guide such functions and
maintains ultimate control. See, e.g., Irwin v. City of Manhattan Beach, 65 Cal. 2d
13, 22–23 (1966); cf. Seattle Affiliate of Oct. 22nd Coal. to Stop Police Brutality,
Repression & Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 798
(9th Cir. 2008). While Civic weighed in on permit applications, the record
established that the City made enforcement decisions independently of Civic and
had the final say on issuing or revoking permits. Further, the citations or violations
issued to AArt came from the City, not from Civic.
First Amendment Claims
This Court also concludes that neither the challenged provisions of the
Ordinance nor the enforcement of such provisions violated the First Amendment.
Under Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), the relevant
provisions of the Ordinance are permissible regulations of commercial speech.
Furthermore, the Ordinance does not vest the City with unbridled discretion to
permit or deny expressive activity because the Ordinance provides detailed standards
limiting enforcement discretion. See Outdoor Sys., Inc. v. City of Mesa, 997 F.3d
604, 613 (9th Cir. 1993). To the extent that AArt advanced as-applied challenges
premised on the alleged pay-to-play scheme between the City and Comic-Con, those
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claims fail because AArt has not produced sufficient direct or circumstantial
evidence of the existence of such a scheme.
IIPEA Claim
Because AArt did not present sufficient evidence of a pay-to-play scheme
between Comic-Con and the City, the IIPEA claim must fail. In order to succeed on
an IIPEA claim, a plaintiff must prove, as a predicate, that the defendant engaged in
conduct that was “wrongful by some measure other than an interference with the
plaintiff’s interest itself.” Della Penna v. Toyota Motor Sales, U.S.A., Inc., 902 P.2d
740, 742 (Cal. 1995). AArt cannot show that, in citing AArt’s signs for non-
compliance with the Ordinance, the City acted wrongfully, especially when AArt’s
signs violated the Ordinance’s prohibition on off-premises advertising.
Conclusion
This Court has reviewed AArt’s remaining arguments on appeal and finds
them to be without merit.
AFFIRMED.
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