FILED

NOT FOR PUBLICATION NOV 17 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

GET OUTDOORS II, LLC, a Nevada No. 08-55005 Limited Liability Company d/b/a GET OUTDOORS, L.L.C., in California, D.C. No. CV-03-01437-W

Plaintiff - Appellant,

MEMORANDUM *

v.

CITY OF EL CAJON, California,

Defendant - Appellee.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding

Argued and Submitted November 5, 2010 Pasadena, California

Before: GOODWIN and RAWLINSON, Circuit Judges, and SEABRIGHT, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable J. Michael Seabright, United States District Judge for the District of Hawaii, sitting by designation. Get Outdoors II, LLC, a Nevada limited liability company, appeals a grant

of summary judgment in favor of the City of El Cajon, California, on all claims.

Get Outdoors filed a dozen permit applications for the installation of outdoors

signs in El Cajon. El Cajon found that all of the applications were for signs that

would violate the city's sign area and height restrictions. Get Outdoors filed suit

against El Cajon claiming its sign ordinance and corresponding permitting

procedures were unconstitutional on their face and as applied with regard to the

First Amendment. Parties engaged in settlement negotiations before a Magistrate

Judge for six months. Get Outdoors claims these negotiations led to an oral

contract in the form of a settlement agreement.

The court below found that each of Get Outdoors' permit applications would

have violated El Cajon's constitutionally valid area and height restrictions. Unable

to redress its injuries, the court found that Get Outdoors did not have standing to

bring First Amendment claims. The court also found that no valid contract resulted

from settlement negotiations, given the absence of the mayor's signature on a

written settlement agreement. We affirm.

I

A previous case involving the same plaintiff and highly similar facts controls

here. See Get Outdoors II v. City of San Diego, 506 F.3d 886 (9th Cir. 2007). The

-2- threshold question is whether Get Outdoors has standing to bring First Amendment

claims. Get Outdoors can point to denial of its permit applications by El Cajon as

injuries in fact, caused by defendant. But Get Outdoors cannot show how this court

could act to overturn denial of the permits, and thereby redress those injuries. Get

Outdoors lacµs standing to bring its First Amendment claims. See id. at 891, (citing

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

This court cannot overturn the denial of Get Outdoors permits because those

permits violated constitutionally valid restrictions. 'Size and height restrictions on

billboards are evaluated as content-neutral time, place and manner regulations.' Id.

at 893, citing Valley Outdoor, Inc. v. County of Riverside, 337 F.3d 1111, 1114-15

(9th Cir. 2003). When non-commercial speech may be involved, as here, such

restrictions 'must be narrowly tailored to serve a significant government interest,

and must leave open ample alternative channels of communication.' Id., citing

Flint v. Dennison, 488 F.3d 816, 830 (9th Cir. 2007). The 35 foot height restriction

and the 300 square foot area restriction are narrowly tailored and leave open ample

alternative channels of communication.

An ordinance which prohibits billboards designed to be viewed from streets

and highways reasonably relates to traffic safety; and traffic safety is a significant

government interest. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 508-09

-3- (1981). As the El Cajon ordinance prohibited the billboards proposed by Get

Outdoors, a significant government interest was served by the ordinance and the

third and final prong of the time, place, and manner test is met.

As the size and height restrictions are constitutionally valid, and all permit

applications would have violated those restrictions, Get Outdoors injuries cannot

be redressed by this court and Get Outdoors, therefore, lacµs standing to bring its

First Amendment claims.

II

Regarding the settlement agreement, in a California general law city, 'The

mayor shall sign: . . . (b) All written contracts and conveyances made or entered

into by the city.' Cal. Gov't Code y 40602. Implicit in this law, contracts with a

general law city must usually be in writing and signed by the mayor. G.L.

Mezzetta, Inc. v. City of Am. Canyon, 78 Cal.App.4th 1087, 1093 (2000). A

contract entered into by a general law city outside of this legal authority is void and

unenforceable. See id. at 1092. Reasonable doubts about whether a general law

city has exercised contracting authority are construed against the exercise of such

authority. Id. When maµing a contract with a general law city in California, a party

is bound to taµe notice of limitations on the city's power to contract. Id. at 1094

n.4.

-4- El Cajon is a general law city. The parties do not dispute that there is no

written instrument signed by the mayor. Without the mayor's signature on a

written instrument, an enforceable contract in the form of a settlement agreement

does not exist.

AFFIRMED.

-5-

FILED

Get Outdoors v. City of El Cajon, Case No. 08-55005 NOV 17 2010 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

I concur in the result.