                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 22 2016

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JEFFREY HERSON; EAST BAY                         No. 11-18028
OUTDOORS, INC., a California
corporation,                                     D.C. No. 4:09-cv-02516-PJH

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

CITY OF RICHMOND, a charter city,

              Defendant - Appellee.


                On Remand From the United States Supreme Court


Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.

       Jeffrey Herson and East Bay Outdoors, Inc. (collectively “Herson”) appeal

the district court’s orders dismissing their various claims. We affirm.

       1. The district court addressed Herson’s claims challenging the repealed

version of the Richmond Sign Code (“Old Ordinance”) in two separate orders.

First, the district court dismissed as moot Herson’s claims seeking declaratory and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
injunctive relief from the Old Ordinance, but left intact Herson’s damages claim

for the denial of his sign applications. The court did not err in dismissing the

declaratory and injunctive claims as moot, because the repealed Old Ordinance

could no longer be enforced against him. See Outdoor Media Grp., Inc. v. City of

Beaumont, 506 F.3d 895, 900-01 (9th Cir. 2007). Thus, “there exist[ed] no live

issue upon which the court could issue prospective relief.” Id. at 901.

Subsequently, the district court granted the City’s motion for summary judgment

on Herson’s damages claim. Because Herson’s proposed signs violated the

content-neutral height and size restrictions of the Old Ordinance, the City had an

independent, constitutionally valid reason for denying Herson’s applications.1 See

Get Outdoors II, LLC v. City of San Diego, Cal., 506 F.3d 886, 893-95 (9th Cir.

2007). Therefore, Herson lacks standing to challenge the allegedly




      1
        The district court’s analysis, in determining that the height and size
restriction of the Old Ordinance was content neutral, complies with the Supreme
Court’s recent opinion in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). The
district court first reasoned that the applicable restriction “does not discriminate, on
its face, between the content of speech.” Herson v. City of Richmond, 827 F. Supp.
2d 1088, 1091 (N.D. Cal. 2011). The district court then determined that the
restriction was “narrowly tailored to serve a compelling City interest.” Id.
Herson’s challenges to the restriction’s exemptions were waived when he failed to
address the district court’s conclusion that these challenges fell outside the scope
of the Third Amended Complaint.

                                           2
unconstitutional portions of the Old Ordinance, because his injury is not

redressable. See id. at 894.

      2. On appeal, Herson argues that the exemptions in Richmond Municipal

Code § 15.06 (the “Current Ordinance”) were content based and that strict scrutiny

should apply in making the summary judgment determination. However, the court

questions the relevance of Herson’s arguments here. The district court treated the

exemptions as content based and applied strict scrutiny. When applying strict

scrutiny, the district court found that the exemptions were constitutional, because

they were the least restrictive means to achieve a compelling state interest.

Because Herson did not argue on appeal that the court erred in its strict scrutiny

analysis, he has waived that argument. See Nilsson, Robbins, Dalgarn, Berliner,

Carson & Wurst v. La. Hydrolec, 854 F.2d 1538, 1547-48 (9th Cir. 1988).

      3. The district court did not err in dismissing Herson’s equal protection

claim. Herson failed to present facts to the district court that could support the

conclusion that either the City of Richmond or Ruby Benjamin, the city employee

who denied Herson’s applications, “intentionally treated [him] differently from

others similarly situated and that there is no rational basis for the difference in

treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Herson

provided proof that other signs had been allowed in the prohibited area. However,


                                            3
even when taken in a light most favorable to Herson, there is no evidence that

Herson was similarly situated to the owners of those signs or that he was

intentionally treated differently by the City.

      4. Finally, the district court did not err in granting the City’s motion for

sanctions. Courts may impose monetary sanctions in the amount of extra

discovery costs caused by spoliation, including the cost of the sanctions motion.

Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006). An appellate court

must not “disturb the district court’s choice of sanction” absent a “definite and

firm conviction that the district court committed a clear error of judgment.”

Johnson v. Wells Fargo Home Mortg., Inc., 635 F.3d 401, 422 (9th Cir. 2011)

(internal quotation marks omitted). Here, we find no clear error. Neither party

claims that the district court applied the wrong law. Further, the Order Re Motion

for Sanctions of August 11, 2011, adopted by the district court, shows that the

district court carefully examined and weighed the facts of the case in determining

Herson’s liability and the amount of the sanctions.

      AFFIRMED.




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