Desert Outdoor Advertising v. City of Oakland , 598 F.3d 1142 ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DESERT OUTDOOR ADVERTISING,  No. 09-15530
INC., a California corporation, D.C. No.
Plaintiff-Appellant,
v.  3:03-cv-01078-SI
ORDER AND
CITY OF OAKLAND, AMENDED
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted March 10, 2010*
San Francisco, California
Filed March 18, 2010
Amended April 20, 2010
Before: Cynthia Holcomb Hall, John T. Noonan and
Sidney R. Thomas, Circuit Judges.
Per Curiam Opinion
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
5807
DESERT OUTDOOR ADVERTISING v. OAKLAND 5809
COUNSEL
Alan R. Herson, Jacksonville, Oregon, for the plaintiff-
appellant.
John A. Russo, Oakland, California, for the defendant-
appellee.
ORDER
The opinion filed on March 18, 2010 is amended as fol-
lows:
At slip op. page 4425, the final paragraph is replaced with

With this amendment, the panel unanimously voted to deny
the petition for rehearing. Judge Thomas has voted to deny
the petition for rehearing en banc, and Judges Hall and Noo-
nan so recommend. The full court has been advised of the
petition for rehearing en banc and no active judge has
requested a vote on whether to rehear the matter en banc. Fed.
R. App. P. 35.
5810 DESERT OUTDOOR ADVERTISING v. OAKLAND
The petition for rehearing and the petition for rehearing en
banc are DENIED. No subsequent petitions for rehearing and
rehearing en banc may be filed.
OPINION
PER CURIAM:
In 2002, Desert Outdoor began displaying a large advertis-
ing billboard, visible from the freeway, on East 9th Street in
Oakland. Desert received a letter from the City of Oakland
demanding that the structure be removed or that a variance be
sought because the sign was prohibited by Oakland’s local
ordinances. Desert applied for a variance and was denied.
Desert then filed suit in the U.S. District Court for the
Northern District of California contending that the Oakland
sign ordinances violated the First Amendment of the U.S.
Constitution. Both Desert and Oakland moved for summary
judgment. Judge Martin Jenkins granted each motion in part
and denied each in part. Desert Outdoor Adver., Inc. v. City
of Oakland, 2004 WL 3128029 (N.D. Cal. Apr. 21, 2004).
Judge Jenkins wrote: “Oakland’s sign regulations are found
in two separate enactments, the Oakland Planning Code
(“OPC”) and the Oakland Municipal Code (“OMC”).” Id. at
*1. The OPC, he said, banned the construction of any new
“advertising sign” in Oakland without a variance. Id. The
OPC also provided for certain regulations pertaining to the
size, placement, and number of signs, again with the possibil-
ity of a variance. Id. at *2. The OMC, Judge Jenkins
explained, “works in conjunction with the OPC to regulate
signs in Oakland.” Id. The OMC “contains an absolute ban on
advertising signs visible from a freeway.” Id.
Judge Jenkins struck down a portion of the OMC allowing
for signs showing only time and temperature, but found that
DESERT OUTDOOR ADVERTISING v. OAKLAND 5811
portion of the ordinance severable. Id. at *9-10. He also
struck down provisions of the OPC allowing for conditional
use permits and for a design review process and found that
those provisions were not severable. Id. at *12-14. He was not
explicit as to whether the offending portions of the OPC were
not severable from the OPC alone, or from the entire sign-
regulation scheme. Desert appealed Judge Jenkins’ Order to
the Ninth Circuit, and we affirmed. Desert Outdoor Adver.,
Inc. v. City of Oakland, 506 F.3d 798 (9th Cir. 2007).
Oakland filed an action in Alameda County Superior Court
and was granted the right to remove the East 9th Street sign
as a nuisance per se under its sign ordinances. In response to
Oakland’s attempts to enforce its state court judgment, Desert
filed an emergency motion in federal district court requesting
an order clarifying the court’s declaratory judgment. Desert
sought a declaration that the state judgment impermissibly
enforced a regulatory scheme declared unconstitutional by
Judge Jenkins. By this time, Judge Jenkins had retired from
federal service, and the case was assigned to Judge Susan Ills-
ton. Judge Illston denied Desert’s motion and found that the
state court’s order did not contravene Judge Jenkins’ judg-
ment. Desert appeals.
[1] Judge Jenkins’ order cannot reasonably be understood
to have struck down the entire scheme of sign-regulation.
Judge Jenkins was clear that he was treating the OMC and
OPC as two separate enactments. He struck down specific
sections of the OMC but found them severable. While he
found portions of the OPC unconstitutional and not severable,
that part of his order cannot be read to have affected the
OMC.
[2] It is the OMC and not the OPC which Oakland is
attempting to enforce in state court. In the state court proceed-
ings, Oakland pointed specifically to OMC § 1501, which it
contended rendered the East 9th Street sign a nuisance per se.
Desert is wrong when it contends that merely having a condi-
5812 DESERT OUTDOOR ADVERTISING v. OAKLAND
tional use permit under the OPC would allow the display of
a sign otherwise banned under the flat prohibition of the
OMC.
[3] Judge Jenkins’ judgment did not strike down the OMC
in its entirety. Oakland is entitled to enforce that ordinance
against Desert.
The district court’s order denying Desert’s request for fur-
ther relief is AFFIRMED.