Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG-03-132111
Marchiano, P.J.
In these consolidated cases, defendants Paul R. Jurich and Desert Outdoor Advertising, Inc. appeal from an order and a judgment involving the illegality of a billboard. Their primary contention is that plaintiff City of Oakland’s freeway sign ordinance is unconstitutional. We disagree, reject defendants’ remaining contentions, and affirm.
I. FACTS
In January of 2002, defendants applied for a permit to erect a sign at 3350 East 9th Street in Oakland. Defendants’ permit application represented that the sign would be “onsite”—associated with a business located on the premises—and would not be visible from the freeway. Defendants admitted below that both representations were false.
Defendants then erected a 50 foot by 14 foot by 48 foot billboard on the site. The billboard read, “Smog Busters Coming Soon.” There was not, and never had been, a “Smog Busters” occupying the premises.
Oakland’s freeway sign ordinance is section 14.04.270 of the Oakland Municipal Code (OMC). That ordinance, which is also known as “section 1501,” bans billboards visible from a freeway. (OMC § 14.04.270; see Desert Outdoor Advertising v. City of Oakland (9th Cir. 2007) 506 F.3d 798, 800 (Desert Outdoor Advertising).) There are exemptions to the ban which are not applicable here: they primarily involve onsite signs, a sign not exceeding six square feet advertising the sale or lease of the premises, or time/temperature displays. Thus, the City of Oakland (City) concluded that defendants’ billboard violated section 1501. (Desert Outdoor Advertising, supra, at p. 801.)
As did the Ninth Circuit, we use the phrase “visible from the freeway.” The precise wording of section 1501 bans signs which are “designed to have or [have] the advertising thereon maintained primarily to be viewed from the freeway. . . .”
On March 4, 2003, the City sent defendants a notice to abate the sign for violation of section 1501. On March 13, 2003, defendant Desert Outdoor Advertising, Inc. (Desert) filed suit against City in federal district court. Desert primarily alleged that section 1501 was unconstitutional on its face. The main components of the facial challenge were that section 1501 unconstitutionally favored commercial speech over noncommercial speech, and constituted an impermissible content-based restriction on speech.
Both Desert and City moved for summary judgment in federal court. On April 21, 2004, Judge Martin J. Jenkins rejected Desert’s facial challenge to section 1501. Judge Jenkins ruled that section 1501 did not favor commercial speech over noncommercial speech, but did find that the time/temperature display exemption was an unconstitutional content-based restriction. The court ruled that the time/temperature exemption could be severed from section 1501, and did so, leaving the remainder of section 1501 constitutionally valid on its face. “The rest of the Ordinance shall remain in place as enacted.”
Judge Jenkins also rejected Desert’s contention that section 1501 was unconstitutional as applied.
Meanwhile, on March 25, 2004, City filed its first amended complaint in the present action, naming Desert and Jurich as defendants. City alleged three causes of action: first, fraud and intentional misrepresentation; second, “Public Nuisance—Injunctive Relief”; and third, against Desert only, unlawful business practices (Bus. & Prof. Code, § 17200 et seq.). The prayer for relief included a request that the East 9th Street billboard be declared a nuisance and that defendants be ordered to abate the nuisance by removing it—or that City be permitted to remove the billboard at defendants’ expense.
In May 2005, City filed a motion for summary judgment or summary adjudication. With regard to the second cause of action for nuisance, City argued the billboard violated section 1501 and thus was a nuisance per se.
On October 5, 2005, the trial court denied City’s motion as to the first and third causes of action. The court granted City’s motion as to the second cause of action for nuisance. The court ruled the billboard violated section 1501 and was thus a nuisance per se. The court ordered defendants to remove the sign, in effect issuing an injunction.
Defendants appealed from the October 5 order. We dismissed that appeal as untimely.
Defendants refused to remove the sign. City obtained an order of contempt against defendants. Defendants sought writ relief in this court on the ground that the trial court lacked contempt jurisdiction because no order to show cause issued below. We agreed and vacated the contempt order.
Meanwhile, the billboard had been altered to permit multiple advertising messages to be sequentially displayed.
In its statement of decision, the trial court found that “[s]ince 2003, Desert Outdoor Advertising has replaced the Smog Busters sign with other advertising signs (Cingular, River Rock Casino, Oaks Card Club and Toyota of Alameda).”
In early 2007, City again wrote defendants demanding that defendants remove the billboard. Again, they refused.
Accordingly, City moved to modify the October 5, 2005 injunction to allow City to remove the sign at defendants’ expense.
On May 1, 2007, the trial court granted the motion to modify the injunction. The court found that defendants “have not complied and do not intend to comply with” the injunction to remove the sign. The court modified the injunction to permit City to remove the billboard at defendants’ expense.
Defendants appeal from the May 1, 2007 modification order. That appeal is A117870.
The matter proceeded to trial on May 7, 2007. At the outset of trial, City dismissed the first cause of action for intentional misrepresentation. The nuisance cause of action having been resolved, the matter was tried on the third cause of action for unlawful business practices. The third cause of action was alleged against defendant Desert only; the trial court formally dismissed defendant Jurich with regard to the third cause of action.
The matter was tried to the court. City presented its case and rested. Before defendant Desert gave its opening statement, it moved for judgment under Code of Civil Procedure section 631.8, on the ground that City had not shown it had the required consent of the district attorney to bring an action for unlawful business practices. (Bus. & Prof. Code, § 17204.)
In response, City produced a letter that apparently evidenced such consent—but the letter was not part of the record of the case. The court granted City permission to reopen its case in order to place the letter in evidence. The City did so and again rested. The court denied Desert’s motion for judgment, and Desert then presented its case at trial.
The matter was submitted May 10, 2007. On May 23, 2007, the trial court granted City leave to file a second amended complaint stating that the action for unlawful business practices was brought on behalf of the People.
On September 25, 2007, the court issued a statement of decision in which it found that Desert had engaged in unlawful business practices by constructing and maintaining the billboard in violation of section 1501. The court awarded $114,000 in statutory penalties and $263,000 in disgorgement of profits. The court also awarded City attorney fees.
The court entered judgment for City on November 2, 2007. After proceedings on Desert’s motion to tax costs, the court awarded City attorney fees of $92,299.75.
Defendant Desert appeals from the judgment. That appeal is A120152.
On October 30, 2007, the Ninth Circuit Court of Appeals filed Desert Outdoor Advertising, supra, 506 F.3d 798, which upheld Judge Jenkins’s ruling.
II. DISCUSSION
A. Issues Common to Both Appeals
Defendants raise six identical issues in both appeals.
Issue 1.
Their primary contention is that Oakland’s sign ordinance is unconstitutional on its face and the Ninth Circuit so ruled. Defendants are incorrect. Judge Jenkins upheld section 1501—apart from a minor, severed provision—against defendant’s facial challenge. The Ninth Circuit affirmed Judge Jenkins and ruled that section 1501 was constitutional on its face. (Desert Outdoor Advertising, supra, 506 F.3d at pp. 802-805.) We independently reach the same conclusion as the Ninth Circuit and agree with its reasoning.
Defendants’ confusion stems from their conflating section 1501 with another sign ordinance, section 17.148.050(A) of the Oakland Planning Code (OPC), which governs advertising signs generally and is broader than section 1501. Unlike section 1501, the OPC has a variance procedure. Judge Jenkins ruled the OPC section’s variance procedure unconstitutional and incapable of being severed from the OPC section. In response, City amended the OPC section to cure the constitutional defect. The Ninth Circuit held that defendants were not harmed by the application of the amended OPC section. (Desert Outdoor Advertising, supra, 506 F.3d at pp. 801-802, 806-808.)
Defendants claim that Judge Jenkins’s ruling regarding the OPC section “successfully invalidated the entire Oakland regulatory scheme” regarding billboards. They are incorrect. As Judge Jenkins found, the billboard in this case is independently banned by section 1501, which has no variance procedure. The OPC section is simply not relevant here.
Section 1501 is facially constitutional.
Defendants have essentially abandoned their “as applied” challenge to section 1501.
Issues 2, 3, and 4.
We thus summarily reject defendants’ claims that they are entitled to relief in this court because the OPC section’s variance procedures are unconstitutional; that the City violated its own procedures for acting on variance applications; and that the amendment to the OPC section amounted to an ex post facto law. The variance procedures are not relevant to the separate, independent question of the billboard’s invalidity under section 1501.
Issues 5 and 6.
Defendants claim that section 1501 violates Article I of the California Constitution and the test for commercial speech restrictions established in Central Hudson Gas & Elec. v. Public Serv. Comm’n (1980) 447 U.S. 557. We reject these claims because they were not properly raised below.
It appears Desert briefly raised the Article I issue in a motion to reconsider the October 5, 2005 order in light of subsequent federal authority. The October 5 order is not directly before us. In any case, defendants’ Article I argument is meritless for the reasons stated by City.
Remaining Issues in A120152
Issue 7.
Defendant Desert argues that the trial court should have granted its and Jurich’s own motion for summary adjudication, based on the theory that City was collaterally estopped from challenging the legality of the billboard. The estoppel theory is based on two points we have already rejected: that section 1501 is unconstitutional because of the defect in the OPC section, and that City failed to follow the OPC section’s variance procedures. As we have held, section 1501 is constitutional and the variance procedures are irrelevant.
Issue 8.
Desert claims the trial court abused its discretion by allowing City to reopen its case to allege that the People of the State of California authorized the action for unlawful business practices, and to add the People as a party. We see no error. The trial court has broad discretion to allow a party to reopen. (Faulkner v. Faulkner (1957) 148 Cal.App.2d 102, 108.) Specifically, a trial court hearing a motion for judgment under Code of Civil Procedure section 631.8 has broad discretion to reopen the matter prior to final judgment. (Howard Contracting, Inc. v. G. A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 56-60; 7 Witkin, California Procedure (4th ed. 1997) Trial, § 440, p. 499.) The reopening and the adding of the People as a nominal party were technical matters that in no way prejudiced Desert.
Issue 9.
Desert complains that the statutory penalties were excessive, on the ground that their federal action actually increased free speech rights in the City of Oakland. We need not discuss the Gordian reasoning advanced by Desert. The simple fact is that Judge Jenkins ruled the billboard illegal under section 1501, and Desert persistently and intentionally refused to remove it. Desert’s ancillary claim that it had a good-faith belief in section 1501’s unconstitutionality falls on its face. The penalties are not excessive under the circumstances of this case.
Issue 10.
Finally, Desert argues the attorney fees—just over $92,000 for five years of litigation, including appeals—were excessive. Desert claims it was fighting to vindicate the free speech rights of others, and should not be penalized. This argument is somewhat disingenuous. In any case, City prevailed in what seems to be a clear-cut case of a facially constitutional ordinance that rendered Desert’s billboard illegal. Under the circumstances of this case, the fees are quite reasonable.
III. DISPOSITION
The May 1, 2007 modification order and the subsequent judgment are affirmed. The stay of the modification order, imposed June 13, 2007, will be dissolved upon the finality of this decision as to this court.
In light of our disposition in this matter, City’s motion to dismiss, filed January 31, 2008, and motion to lift stay, filed July 18, 2008, are denied as moot.
We concur: Swager, J., Margulies, J.
City’s motion for sanctions, filed August 21, 2008, is denied.