NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted October 8, 2014
San Francisco, California
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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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 The district court addressed Herson’s claims challenging the repealed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
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declaratory and injunctive claims as moot, because the repealed Old Ordinance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. 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
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
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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,
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.
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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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