ORDER GRANTING DEFENDANT CITY OF EL CAJON'S MOTION FOR SUMMARY JUDGMENT

THOMAS WHELAN, District Judge

On July 21, 2003, Plaintiff Get Outdoors II, LLC ("Get Outdoors") commenced this action against Defendant City of El Cajon ("El Cajon") claiming that El Cajon violated Get Outdoors' First Amendment rights. El Cajon now moves for summary judgment on all claims. The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons stated below, the Court GRANTS El Cajon's summary-judgment motion.

I. BACKGROUND

Get Outdoors is a Nevada limited liability company, authorized to operate outdoor advertising signs throughout the State of California. El Cajon is a political subdivision of the State of California.

Get Outdoors is pursuing opportunities in the outdoor advertising industry in Southern California. In the instant case, it seeks to post signs in El Cajon for the purpose of communicating commercial and noncommercial messages regarding products, services, ideas, candidates, issues, events, and other topics. To that end, Get Outdoors negotiated with various property owners in El Cajon and arranged to lease space to display its signs. The properties are located in heavily commercial and industrial areas adjacent to major roads. On June 9, 2003, Get Outdoors submitted twelve sign-permit applications to El Cajon.

On June 10, 2003, El Cajon informed Get Outdoors that only four applications for off-premises signs could be submitted at one time, because four additional signs reached the maximum allowable number of off-premises signs under El Cajon's Zoning Ordinance. Get Outdoors was asked to retrieve its applications, select four, and properly resubmit. Get Outdoors never resubmitted. Instead, on July 24, 2003, Get Outdoors filed its First Amended Complaint, seeking injunctive relief. On September 30, 2003, El Cajon adopted Ordinance No. 4752 repealing the Zoning Ordinance that Get Outdoors applied under.

After a lengthy series of hearings and conferences, El Cajon moved this Court for summary judgment, arguing that because they had enacted legislation replacing the challenged ordinance, the case was moot. On February 12, 2007, this Court denied the motion, finding that Ordinance No. 4752 had expired, rendering the action not moot. Additionally, based on the record at that time, this Court further held that Get Outdoors had standing to sue, finding that El Cajon had not satisfied its burden of demonstrating a constitutional basis for denying Get Outdoors' applications.

On April 24, 2007, the City adopted and passed Ordinance 4877 (the "Current Sign Ordinance"), amending the challenged sign ordinance (the "Prior Sign Ordinance"). On July 12, 2007, Get Outdoors filed a Second Amended Complaint in order to assert a claim for breach of a settlement agreement. In the complaint, Get Outdoors continues to allege that El Cajon's Prior Sign Ordinance unconstitutionally favors commercial over noncommercial speech. (Sec. Am. Compl., ¶ 15.) Get Outdoors seeks both injunctive relief and damages, arguing that it "would have collected substantial revenue on a monthly basis from the signs for which it had requested permits" and that it "has suffered and continues to suffer irreparable harm by being deprived of its free speech rights." (Id., ¶¶ 104-05.)

On October 15, 2007, El Cajon moved this Court for summary judgment on all claims. El Cajon contends that Get Outdoors lacks standing to challenge the sign ordinance and alternatively, that all of the above challenges are moot. El Cajon also contends that it did not enter into a settlement agreement with Get Outdoors.

II. LEGAL STANDARD

Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case.Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986);Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248.

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. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252) ("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 that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).

III. STANDING

Get Outdoors raises three types of constitutional challenges. First, Get Outdoors challenges the Ordinance on the basis that it is overbroad. (See Plt.'s Opp'n at 8:12-14; Sec. Am. Compl., ¶¶ 74, 82.) Second, Get Outdoors argues that the Sign Ordinance is content-based and impermissibly favors certain types of speech. (Plt.'s Opp'n at 13:19-21; Sec. Am. Compl., ¶¶ 64, 69, 86, 90.) Third, Get Outdoors argues that the Ordinance lacks constitutionally required procedural safeguards with respect to the City officials' level of discretion and time limits of the initial decision-making process. (Plt.'s Opp'n at 10:18-23; Sec. Am. Compl., ¶ 55, 60, 78.)

El Cajon contends that Get Outdoors does not have standing to pursue these claims. Specifically, El Cajon argues that Get Outdoors has not suffered any actual injury related to the complained of conduct and that a favorable decision is unlikely to redress any injuries. (Mot. for Summ. J. at 15-16.) The Court agrees.

A. The overbreadth claims fail.

To prove standing, a plaintiff must show (1) injury in fact, (2) causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In addition to these requirements, federal courts have added the "prudential standing doctrine," which requires a court to ask whether "the plaintiff's claim is sufficiently individualized to ensure effective judicial review." Get Oudoors II. LLC v. City of San Diego, ___ F.3d ___, 2007 WL 3197108 *2 (9th Cir. 2007).

As a general rule, a party may assert only his or her own rights and cannot raise claims on behalf of parties not before the court. Secretary of State Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955 (1984). In the First Amendment context, however, a party may prosecute claims on behalf of third parties:

When a case concerns a challenge that a statute or ordinance is, on its face, unconstitutional, particularly in the First Amendment context, the type of facial challenge at issue affects the standing analysis. While a plaintiff must demonstrate an injury in fact, a plaintiff may in some circumstances assert not just his own constitutional rights, but also the constitutional rights of others.

But in asserting an overbreadth challenge, only the prudential standing doctrine is eliminated. Get Outdoors II, WL 3197108 *3 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). A plaintiff must still satisfy the three Lujan elements of standing, so that he can satisfactorily frame the issues on behalf of non-parties. See Munson, 467 U.S. at 956; Get Outdoors II, WL 3197108 *3; Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 554 (9th Cir. 2003). Therefore, Get Outdoors may assert an overbreadth claim only if the three Lujan factors are satisfied.

In Get Outdoors II, the Ninth Circuit evaluated plaintiff's standing to pursue an overbreadth challenge against the City of San Diego's sign ordinance. Plaintiff applied for off-premises sign permits, and the City denied the permits under a provision banning all off-premises signs. In its summary-judgment motion, the City demonstrated that irrespective of its ban on all off-premises signs, plaintiff's permit applications would have been denied under a provision restricting the size and height of billboards. Because the size and height restrictions were not unconstitutional, the Ninth Circuit held that plaintiff's injury could not be redressed, and thus affirmed the district court's order granting summary judgment.

Just as in Get Outdoors II, here, El Cajon argues that even if Get Outdoors had properly applied for the permits, the applications would have been denied under a provision in the ordinance restricting the size and height of billboards. (Decl. of Alvey, at ¶ 13-15.) Get Outdoors does not dispute this fact. Thus, if El Cajon's size and height restrictions are enforceable, Get Outdoors' injuries are incapable of redress. Get Outdoors II, 2007 WL 3197108 at *5.

Billboard regulation is a distinct area of the law and has been referred to as "the law of billboards." See Kovacs v. Cooper, 336 U.S. 77, 97 (1949).

While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities' police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs-just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise.

El Cajon's size and height restrictions simply limit billboard sizes to 300 square feet each. (See Chapter 17.53.030A.) Thus, the restrictions leave open ample channels for communication, and nothing in the record even remotely suggests that the restrictions are unreasonable. Indeed, the Ninth Circuit recently held that similar size and height restrictions did not violate the First Amendment. Accordingly, the Court finds El Cajon's size and height restrictions are enforceable.

Because El Cajon's size and height restrictions are enforceable, Get Outdoors' permit applications would have been denied, regardless of whether other provisions in the ordinance are unconstitutional. Thus, a favorable decision would provide no redress to Get Outdoors. See Covenant Media, 493 F.3d at 429-30;Prime Media, 485 F.3d at 349-50; KH Outdoor, 482 F.3d at 1305. Additionally, as the Ninth Circuit has recently stated, damages are inappropriate under these circumstances. See County of Riverside, 337 F.3d at 1115 ("Insofar as the . . . claim for damages based on the unconstitutionality of the Original Ordinance remains live, no damages are warranted because the subject billboards were independently illegal under that ordinance's content-neutral zoning, size, and height provisions. . . ."); see also Get Outdoors II, 2007 WL 3197108. Accordingly, the Court finds that Get Outdoors lacks standing to bring its overbreadth challenge. B. The remaining claims also fail.

Get Outdoors presents two remaining claims. First, that the Sign Ordinance is content-based and impermissibly favors certain types of speech. (Plt.'s Opp'n at 13:19-21; Sec. Am. Compl., ¶¶ 64, 69, 86, 90.) Second, that the Sign Ordinance presents an unconstitutional threat of prior restraint. (Plt.'s Opp'n at 10:17-23; Sec. Am. Compl., ¶¶ 55, 60.)

As stated above, Get Outdoors' applications were denied on constitutionally valid grounds. Therefore, Get Outdoors cannot show that it would ever be genuinely threatened by an unconstitutional prior restraint or content-based restriction in this instance. See Get Outdoors II, LLC, 2007 WL 3197108 *5 ("[B]ecause standing is addressed on a claim by claim basis, an unfavorable decision on the merits of one claim may well defeat standing on antoher claim if it defeats the plaintiff's ability to. seek redress.") Accordingly, Get Outdoors lacks standing to pursue its remaining claims.

IV. MOOTNESS

Assuming, arguendo, that Get Outdoors did have standing to challenge the permitting process, the Court agrees with El Cajon's contention that the case is now moot.

"Mootness is like standing, in that if it turns out that resolution of the issue presented cannot really affect the plaintiff's rights, there is, generally speaking, no case or controversy for the courts to adjudicate; no real relief can be awarded." Smith v. University of Washington Law School, 233 F.3d 1188, 1193 (9th Cir. 2000). An action is moot where the issues presented are no longer "live" or when the parties lack a cognizable interest in the outcome. Jacobus v. Alaska, 338 F.3d 1095, 1102 (9th Cir. 2003). For instance, often a case becomes moot when a challenged law is amended, repealed, or expires. See e.g. Princeton University v. Schmid, 455 U.S. 100, 103 (1982) (case mooted by substantial amendment of challenged regulations).

There are exceptions to the mootness doctrine. For example, when the defendant's conduct is a wrong "capable of repetition, yet evading direct review," or when the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time. Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994) ("Noatak").

In Noatak, the plaintiff sought injunctive relief in a challenge to a regulatory expansion of a revenue-sharing program. The Ninth Circuit found that the case was moot because the statute pursuant to which the challenged regulations were promulgated had been repealed. In reaching its decision, the Ninth Circuit held that the matter did not fall within the "capable of repetition yet evading review" exception because there was no reasonable expectation that the alleged injury would recur. Id. at 1510. The court further held that the voluntary cessation exception to mootness did not apply because a "statutory change . . . is usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed." Id. The court noted that "exceptions to this general line of holdings are rare and typically involve situations where it is virtually certain that the repealed law will be reenacted." Id. at 1510-11. The court held that the plaintiffs' fear of possible injury from the state's retention of an allegedly discriminatory policy did not constitute a reasonable expectation that the same injury would occur. Id.

As stated above, on April 24, 2007, the El Cajon adopted and passed the Current Ordinance, which differs from its predecessor in several respects. For example, it contains a "message substitution clause," which provides:

Subject to a property owner's consent, a noncommercial message of any type may be substituted for any duly permitted or allowed commercial message or any duly permitted or allowed noncommercial message, provided that the sign structure or mounting device is legal, without consideration of the message content. Such substitution of message may be made without any additional approval or permitting. This provision prevails over any more specific provision to the contrary within this Chapter. The purpose of this provision is to prevent any inadvertent favoring of commercial speech over noncommercial speech, or favoring of any particular noncommercial message. This provision does not create a right to increase the total amount of signage on a parcel of land use, nor does it affect the requirement that a sign structure or mounting device be properly permitted. (Ex. E.)

Among other changes, the Current Sign Ordinance also explicitly restricts the reviewing City official from considering the message content of the proposed billboard.

Get Outdoors has presented no compelling evidence that El Cajon's enactment of the new ordinance was taken in bad faith or was not genuine in any way. The Court does not believe it is appropriate, in the absence of evidence to the contrary, to second guess the motives of a legislative body in amending or modifying an ordinance that may represent an effort to correct potential constitutional deficiencies in that particular law. Moreover, there is no evidence before the Court that El Cajon intends to re-enact the Prior Sign Ordinance if the case is dismissed.

Furthermore, because its permits were independently invalid, it cannot be said that Get Outdoors suffered any injury compensable by even nominal damages. See GetOutdoors II, LLC, 2007 WL 3197108; see also County of Riverside, 337 F.3d at 1115. Accordingly, the Court finds that the case is also moot.

V. BREACH OF CONTRACT

Get Outdoors argues that El Cajon breached its settlement agreement. Get Outdoors contends that counsel for El Cajon entered into an oral contract on behalf of the City during settlement negotiations. (Plt.'s Opp'n at 23:9-14.) El Cajon counters that no enforceable contract was entered into by the parties pursuant to Government Code 40602. California Government Code requires the Mayor's signature on a written contract before it becomes enforceable. (Def.'s Mot. for Summ. J., at 19:16-20.) The Court agrees with El Cajon.

El Cajon is a general law city. "The powers of a general law city include only those powers expressly conferred upon it by the Legislature, together with such powers as are necessarily incident to those expressly granted or essential to the declared object and purposes of the municipal corporation." City of Orange v. San Diego County Employees Retirement Assn., 103 Cal. App. 4th 45, 57 (2002) (quoting G.L. Mezzetta. Inc. v. City of American Canyon, 78 Cal. App. 4th 1087, 1092 (2000)). The powers of such a city are strictly construed, so that any fair and reasonable doubt concerning the exercise of a power is resolved against the corporation. Id. A general law city must comply with state statutes that specify requirements for entering into contracts.Id.

El Cajon is bound by California Government Code section 40602 which provides that "[t]he mayor shall sign . . . [a]ll written contracts and conveyances made or entered into by the city." Cal. Gov't Code § 40602. In this context, "shall" is mandatory. South Bay Senior Housing Corp. v. City of Hawthorne, 56 Cal. App. 4th 1231, 1236 (1997) (finding no contract under Cal. Gov. Code section 40602 without the Mayor's signature.) In South Bay, the court, in interpreting Government Code section 40602, found that:

[B]y the plain language of the statutes, the City's power to make a contract is limited to the prescribed method and, by necessary implication, that any other method is prohibited-which means that, unless it was signed by the Mayor, the contract with South Bay is void and no implied liability can arise under that contract.

Here, El Cajon's counsel negotiated during six months of settlement talks in front of Magistrate Judge Brooks. Throughout these talks, no written contract was ever signed by El Cajon's mayor. Get Outdoors claims that a judgment not enforcing the settlement agreement would "make a mockery of Magistrate Judge Brooks' hard work in coordinating the many settlement conferences as well as this Court's entire settlement conference procedure." (Plt.'s Opp'n at 25:22-25.) However, this point is inapposite. Any "mockery" has already been addressed in Judge Brooks' thorough and well-reasoned order sanctioning El Cajon in the amount of $16,914.01. (See Doc. No. 90.) Regardless of any bad faith on the part of El Cajon, the mayor never signed any contract. Therefore, there is no enforceable contract to breach.

VI. CONCLUSION AND ORDER

In light of the foregoing, the Court GRANTS El Cajon's summary-judgment motion [Doc. No. 127]. The pre-trial conference scheduled for November 26, 2007 is VACATED. The Clerk shall close the District Court file.

IT IS SO ORDERED.