                                                                           FILED
                            NOT FOR PUBLICATION                             APR 18 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SHOW MEDIA CALIFORNIA, LLC, a                    No. 10-57015
California limited liability company,
                                                 D.C. No. 2:09-cv-03270-ABC-
              Plaintiff - Appellant,             JWJ

  v.
                                                 MEMORANDUM *
CITY OF LOS ANGELES, a California
municipality,

              Defendant - Appellee.



                   Appeal from the United States District Court
                       for the Central District of California
                 Audrey B. Collins, Chief District Judge, Presiding

                       Argued and Submitted March 8, 2012
                              Pasadena, California

Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.




       When the City of Los Angeles refused to accept Show Media’s applications

to replace two off-site sign structures owned by previous lease-holders, Show



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Media filed suit against the City. Show Media appeals the district court’s dismissal

of its claims, arguing (1) that the rebuild provision of the City’s Sign Ordinance is

unconstitutional and (2) that the district court misapplied the standard for pleading

by improperly resolving disputed factual issues in ruling on the City’s 12(b)(6)

motion. We affirm.

                                           I

      Show Media does not have standing to challenge L.A. Municipal Code

§ 91.6216.4.3 (the rebuild provision) as unconstitutional. Even if we determined

that the rebuild provision were invalid, Show Media would be prohibited from

obtaining a permit under the sign ordinance, which bans off-site signs such as

Show Media’s. See Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886 (9th

Cir. 2007); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-1 (1992). If

we construe Show Media’s complaint as a challenge to the sign ordinance, as

opposed to the rebuild provision, such challenge would fail on the merits.

      “We review de novo the constitutionality of a local ordinance.” World Wide

Rush, LLC v. City of Los Angeles, 606 F.3d 676, 684 (9th Cir. 2010) (internal

citation and quotations omitted). The communicative aspects of billboards are

protected by the First Amendment, Metromedia, Inc. v. City of San Diego, 453

U.S. 490, 502 (1981), and we assess the constitutionality of restrictions on such


                                          2
commercial speech using the four-part Central Hudson test. See Cent. Hudson Gas

& Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980). At issue here

are the test’s second, third, and fourth prongs. See World Wide Rush, 606 F.3d at

684.

       A restriction on commercial speech must seek “to implement a substantial

governmental interest,” Metromedia, 453 U.S. at 507, and the interest may be

unconstitutionally underinclusive if it exempts some speech from the restriction,

World Wide Rush, 606 F.3d at 685. The “effect of the challenged restriction,”

however, must “be evaluated in the context of the entire regulatory scheme.”

World Wide Rush, 606 F.3d at 685, quoting Greater New Orleans Broad. Ass'n,

Inc. v. United States, 527 U.S. 173, 192 (1999). The City has a substantial

governmental interest in reducing billboard blight while complying with the Fifth

Amendment’s takings requirements.

       A restriction on commercial speech must directly advance the government’s

interest. Metromedia, 453 U.S. at 507. Exceptions to a regulation may so

undermine that interest, however, that the regulation cannot directly advance it.

Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 904-05 (9th Cir. 2009).

The Rebuild Provision does not in this way make the Sign Ordinance

unconstitutionally underinclusive. Allowing routine maintenance to existing signs


                                          3
will slow the signs’ disappearance, but it will not prevent their gradual

disappearance through landowners’ decisions not to renew site leases, sign owners’

failure to make timely preventative maintenance, or catastrophic accidents such as

earthquakes. See Ackerley Commc’ns of Nw. Inc. v. Krochalis, 108 F.3d 1095,

1097 (9th Cir. 1997) (gradual loss of leases will reduce the overall number of

billboards). Accordingly, the Rebuild Provision does not “so undermine [the Sign

Ordinance as a whole] that it cannot materially advance its aim.” Metro Lights,

551 F.3d at 914 (citation and quotation marks omitted). Additionally, the Rebuild

Provision directly advances the City’s interest in ensuring that existing billboards

are kept in a safe and attractive state of repair, rather than falling into a dangerous

or ugly state of dilapidation. We agree with the district court’s conclusion that the

City’s regulation strikes a balance between “its goals of avoiding the financial

strain of paying just compensation, while guaranteeing either the adequate

maintenance of existing signs or, if not, the elimination of the sign and reduction of

signage in the City.”

      A restriction on commercial speech must reach “no further than necessary to

accomplish the” government’s objective. Metromedia, 453 U.S. at 507. This

“narrow tailoring requirement guards against over-regulation rather than

under-regulation.” Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 911


                                            4
(9th Cir. 2009). The Supreme Court has held that a complete ban on billboards is

not broader than necessary. Metromedia, 453 U.S. at 508. Therefore, a partial ban

on billboards such as the Sign Ordinance with the Rebuild Provision is not over-

regulation. Metro Lights, 551 F.3d at 911-2; Vanguard Outdoor, LLC v. City of

Los Angeles, 648 F.3d 737, 743 (9th Cir. 2011). Morever, Show Media’s proposed

scheme to replace its competitors’ signs with its own would be less narrowly

tailored to the goal of efficiently reducing billboard blight than the existing

scheme, not more.

                                           II

      We have already recognized that the government “has a strong financial

interest in allowing . . . grandfathered billboards to stay” so that it does not “have

to pay just compensation to . . . billboard owners.” Maldonado v. Morales, 556

F.3d 1037, 1048 (9th Cir. 2009). The district court did not err in considering the

City’s interests in avoiding the costs of complying with the Fifth Amendment’s

takings requirements, nor did it err in dismissing as conclusory Show Media’s

monopoly argument with respect to Central Hudson’s narrow tailoring

requirement.

      AFFIRMED.




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