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United States District Court, C.D. California
July 9, 2015
CALIFORNIA OUTDOOR EQUITY PARTNERS; and AMG OUTDOOR ADVERTISING, INC., Plaintiffs,v.CITY OF CORONA, a California Municipal Corporation Defendants.
MARGARET M. MORROW, District Judge.
On April 28, 2015, California Outdoor Equity Partners ("COEP") and AMG Outdoor Advertising, Inc. ("AMG") (collectively, "plaintiffs") filed this action against the City of Corona ("the City") and various fictitious defendants.[1] The claims concern allegedly unequal enforcement of a ban on off-site commercial billboards in the City that is purportedly unconstitutional on its face.
On April 30, 2015, plaintiffs filed a motion for preliminary injunction, which they noticed for hearing on July 6, 2015.[2] On May 21, 2015, plaintiffs filed an ex parte application for temporary restraining order, [3] which the court denied, finding that plaintiffs had failed to show a likelihood of success on the merits of their claims.[4] Also on May 21, 2015, the City filed a motion to dismiss.[5] Both the motion to dismiss and the motion for preliminary injunction are opposed.[6]
A. Facts Alleged in the Complaint
The City of Corona Municipal Code § 17.74.160 prohibits the construction or operation of outdoor, off-site, commercial signs, i.e., billboards.[7] The ban does not apply to on-site commercial billboards, or to noncommercial billboards.[8] Section 17.74.070(H) provides for the relocation of previously existing off-site, commercial billboards. Specifically, it states: "[N]ew off-premises advertising displays... may be considered and constructed as part of a relocation agreement requested by the city or redevelopment agency and entered into between the city or redevelopment agency and a billboard and/or property owner.... Such agreements may be approved by the City Council upon terms that are agreeable to the city and/or redevelopment agency in their sole and absolute discretion."[9]
Plaintiffs allege that the City's ban on off-site, commercial billboards violates the First Amendment and the free speech clause of the California constitution because it is an impermissible content-based regulation of free speech.[10] They also contend that § 17.74.070(H) is invalid as a prior restraint on free speech, given that it vests the City Council with unfettered discretion to approve relocation of preexisting off-site commercial billboards. Finally, they assert that even if the ban is constitutional, it is being applied in a discriminatory manner in violation of the equal protection clause set forth in Article 1, Section 7 of the California constitution, because the City is permitting Lamar Advertising Company ("Lamar") to build new billboards while denying them the right to do so.[11]
B. The State Court Proceedings
On December 30, 2014, the City filed a nuisance abatement action in Riverside Superior Court against AMG and other non-parties, alleging, inter alia, claims for public nuisance arising out of the state court defendants' violation of the City's ban on off-site commercial billboards.[12] On January 7, 2015, the superior court granted the City's application for temporary restraining order. The state court defendants sought a writ of mandate vacating the temporary restraining order; their petition was summarily denied by the California Court of Appeal.[13] On January 23, 2015, the superior court issued a preliminary injunction in favor of the City, [14] which is the subject of a pending appeal.[15] Although the initial complaint named only AMG and various other individuals and entities that are not parties to this action, COEP was added as a party in the first amended complaint, filed May 18, 2015.[16]
A. The City's Request for Judicial Notice
The City asks the court to take judicial notice of certain portions of its Municipal Code, as well as the docket and various court filings in the pending state court action against plaintiffs.[17] Plaintiffs do not oppose the request. Because Rule 12(b)(6) review is confined to the complaint, the court typically does not consider material outside the pleadings (e.g., facts presented in briefs, affidavits, or discovery materials) in deciding such a motion. In re American Continental Corp./Lincoln Sav. & Loan Securities Litig., 102 F.3d 1524, 1537 (9th Cir. 1996). It may, however, properly consider exhibits attached to the complaint and documents whose contents are alleged in the complaint but not attached, if their authenticity is not questioned. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
In addition, the court can consider matters that are proper subjects of judicial notice under Rule 201 of the Federal Rules of Evidence. Id. at 688-89; Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) ("[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice").[18] The court is "not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint." Steckman v. Hart Brewing Inc., 143 F.3d 1293, 1295 (9th Cir. 1998).
The City asks that the court take judicial notice of six documents filed in the state court action, as well as the docket in that case.[19] These documents bear directly on whether the court can properly exercise jurisdiction in this case. It is well established that federal courts may take judicial notice of state court orders and proceedings when they bear on the federal action. See Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006) (taking judicial notice of state court orders and proceedings); see also United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (stating that an appellate court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue"); ScripsAmerica, Inc. v. Ironridge Global LLC, 56 F.Supp.3d 1121, 1136 (C.D. Cal. 2014) ("It is well established that federal courts may take judicial notice of related state court orders and proceedings.").
The City also requests that the court notice certain relevant portions of the municipal code. Under Rule 201, municipal ordinances are proper subjects of judicial notice because they are not subject to reasonable dispute. See Tollis, Inc. v. County of San Diego, 505 F.3d 935, 938 n. 1 (9th Cir. 2007) ("Municipal ordinances are proper subjects for judicial notice"); Engine Mfrs. Ass'n v. South Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n. 2 (9th Cir. 2007) (taking judicial notice of a municipal ordinance and stating that "[m]unicipal ordinances are proper subjects for judicial notice"); Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir. 2006) (taking judicial notice of Santa Monica Ordinances Nos. 2116 and 2117). The court accordingly takes judicial notice of the various sections of the Corona Municipal Code that are the subject of the City's judicial notice request.
B. Legal Standard Governing Motions to Dismiss under Rule 12(b)(6)
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory, " or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). The court must accept all factual allegations pleaded in the complaint as true, and construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995).
The court need not, however, accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). Thus, a complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)" (citations omitted)); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[F]or a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief, " citing Iqbal and Twombly ).
C. Whether the Court Should Abstain from Deciding Plaintiffs' Claims under Younger v. Harris
1. Legal Standard Governing Abstention under Younger
Under the doctrine first articulated in Younger v. Harris, 401 U.S. 37 (1971), federal courts must abstain from hearing cases that would interfere with pending state court proceedings that implicate important state interests. Potrero Hills Landfill, Inc. v. County of Solano, 657 F.3d 876, 881 (9th Cir. 2011) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). The doctrine is justified by considerations of comity - "a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Younger, 401 U.S. at 44.
"Absent extraordinary circumstances, ' abstention in favor of state judicial proceedings is required if the state proceedings (1) are ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims." Hirsh v. Justices of Supreme Court of California, 67 F.3d 708, 712 (9th Cir. 1995) (citing Middlesex County Ethics Commission, 457 U.S. at 437). Even then, abstention is appropriate only where the federal action enjoins the state court proceedings or has the practical effect of doing so. AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1149 (9th Cir. 2007); Gilbertson v. Albright, 381 F.3d 965, 978 (9th Cir. 2004) (en banc) (" If a state-initiated proceeding is ongoing, and if it implicates important state interests..., and if the federal litigant is not barred from litigating federal constitutional issues in that proceeding, then a federal court action that would enjoin the proceeding, or have the practical effect of doing so, would interfere in a way that Younger disapproves" (emphasis original)).
While the Supreme Court has never directly addressed the subject, the Ninth Circuit has held "that Younger principles apply to actions at law as well as for injunctive or declaratory relief." Gilbertson, 381 F.3d at 968 (reasoning that "a determination that the federal plaintiff's constitutional rights have been violated would have the same practical effect as a declaration or injunction on pending state proceedings"). "If, in a case in which the plaintiff seeks damages, the court determines that the Younger abstention is appropriate, it should stay the matter until the state court proceedings are concluded, rather than dismissing the action." ScripsAmerica, Inc., 56 F.Supp.3d at 1143 (citing Gilbertson, 381 F.3d at 981-82).
2. Application of Younger to the Facts of this Case
i. Whether State Court Proceedings Are Ongoing
The City argues that it filed a state court action in the name of the People of the State of California against both COEP and AMG, and that the case is ongoing for purposes of Younger. [20] The state action was filed on December 30, 2014, [21] and there is no dispute that it is presently pending.[22] Initially, the state court complaint named only AMG and various other individuals and entities that are not parties to this action. COEP was added as a party in the first amended complaint, filed May 18, 2015.[23] The fact that COEP was added as a state court defendant after plaintiffs filed this action does not affect the court's conclusion that the state court action is ongoing. "Whether the state proceedings are pending' is not determined by comparing the commencement dates of the federal and state proceedings. Rather, abstention under Younger may be required if the state proceedings have been initiated before any proceedings of substance on the merits have taken place in the federal court.'" M&A Gabaee v. Community Redevelopment Agency of City of Los Angeles, 419 F.3d 1036, 1041 (9th Cir. 2005) (quoting Polykoff v. Collins, 816 F.2d 1326, 1332 (9th Cir. 1987)); see also Hicks v. Miranda, 422 U.S. 332, 349 (1975) ("[W]e now hold that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force").
State court proceedings against AMG commenced months before this action was filed in federal court on April 28, 2015. COEP was added as a defendant approximately one month after the state case was filed; prior to COEP's addition as a party, however, there were no proceedings in the federal action. Although plaintiffs in this action filed a motion for preliminary injunction on April 30, 2015, they noticed it for hearing on July 7. Meanwhile, there have been significant developments in the state court action. The superior court has entered a temporary restraining order in favor of the City;[24] additionally, the state court defendants sought a writ of mandate vacating the temporary restraining order, which was summarily denied by the California Court of Appeal.[25] The superior court also issued a preliminary injunction in favor of the City, [26] which is the subject of a pending appeal.[27] See New Orleans Pub. Serv., Inc. v. Council of City of New Orleans (" NOPSI "), 491 U.S. 350, 369 (1989) ("For Younger purposes, the State's trial-and-appeals process is treated as a unitary system, and for a federal court to disrupt its integrity by intervening in mid-process would demonstrate a lack of respect for the State as sovereign.... [Thus, a] necessary concomitant of Younger is that a party [wishing to contest in federal court the judgment of a state judicial tribunal] must exhaust his state appellate remedies before seeking relief in the District Court, '" quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975)). Accordingly, the court concludes that state proceedings were initiated before any proceedings of substance on the merits had taken place in this case, and that the state proceedings are ongoing for Younger purposes. See Hicks, 422 U.S. at 349; M&A Gabaee, 419 F.3d at 1041.
In their opposition, and again at the hearing, plaintiffs disputed this conclusion. They argued that COEP is not a proper party to the state court proceedings because it did not build any signs on the locations there at issue. The first amended state court complaint alleges that COEP was "created in November of 2014 by [plaintiffs'] counsel, [and that its] primary purpose [is] to assist AMG [in its] illegal attempts to acquire sites for, erect, operate and/or own illegal billboards."[28] It also pleads that "there is such a unity of interest, ownership, and control between AMG[ ] and [COEP], and such a complete disregard of the corporate form and formalities, that the separate personalities of these entities no longer exist, and that if the acts of one or more of them are treated as those of that entity alone, it would sanction a fraud or promote injustice."[29] The City asserts that such practices are common among billboard companies and that they are undertaken "to create additional procedural hurdles for public agencies and courts to jump through and to avoid effective judicial relief."[30] It is thus clear not only that COEP is a party to the state court action, but that the first amended state court complaint alleges a basis for imposing liability on it, i.e., that it is an alter ego of AMG. See D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1230 (10th Cir. 2004) ("when in essence only one claim is at stake and the legally distinct party to the federal proceeding is merely an alter ego of a party in state court, Younger applies"); Cedar Rapids Cellular Tel., L.P. v. Miller, 280 F.3d 874, 882 (8th Cir. 2002) (corporation could not avoid Younger by having subsidiaries sue in federal court when federal relief could obstruct enforcement of state-court remedy); cf. Spargo v. N.Y. State Com'n on Jud. Conduct, 351 F.3d 65, 81-84 (2d Cir. 2003) ( Younger applies to persons not parties in state proceedings when the free-speech right asserted in the federal action is purely derivative of the free-speech rights of the defendant in the state proceeding).
Plaintiffs ask the court to conclude that COEP is a sham party in state court, and permit it to prosecute this action on that basis. To the extent plaintiffs dispute the existence of an alter ego relationship, and dispute that COEP violated the municipal code, the proper forum to litigate those questions is the state court. See Burlington Ins. Co. v. Panacorp, Inc., 758 F.Supp.2d 1121, 1134-35 (D. Haw. 2010) (finding that Younger abstention was warranted where Hawaii state law was unsettled regarding as to whether an insurance policy afforded coverage for a solely-owned corporation that was allegedly an alter ego of the individual named insured because the alter ego issue "was best resolved in the first instance by state court"). To hold otherwise would eviscerate the underlying purpose of Younger abstention, i.e., to ensure "a proper respect for state functions, " Younger, 401 U.S. at 44, and "would both unduly interfere with the legitimate activities of the state and readily be interpreted as reflecting negatively upon the state courts' ability to enforce [legal and] constitutional principles, " Gilbertson, 381 F.3d at 972 (internal quotation marks and citation omitted). Plaintiffs' argument that Younger is inapplicable because COEP is not a proper party in the state court action is therefore unavailing.
ii. Important State Interest
"Circumstances fitting within the Younger doctrine, [the Supreme Court has] stressed, are exceptional'; they include, ... state criminal prosecutions, ' civil enforcement proceedings, ' and civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions.'" Sprint Communications, Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013). In state court, the City has alleged, inter alia, a cause of action for public nuisance based on purported violations of its municipal ban on off-site, commercial billboards.[31] See CORONA MUNICIPAL CODE, § 17.74.160 ("Except as provided in § 17.74.070(H), outdoor advertising signs (billboards) are prohibited in the City of Corona. The city shall comply with all provisions of the California Business & Professions Code regarding amortization and removal of existing off-premise and outdoor advertising displays and billboard signs").[32] The state court action is thus an enforcement action by the City to abate a purported public nuisance.
In Huffman, 420 U.S. at 604, the Supreme Court held that abstention was appropriate where the state filed a civil action against a theater displaying obscene movies in violation of state nuisance law because "an offense to the State's interest in... nuisance litigation is likely to be every bit as great as it would be were this a criminal proceeding." Id. Plaintiffs maintain that the state is not a party to the state court action, and hence Huffman is inapposite.[33] There is no merit to this assertion. The Ninth Circuit has repeatedly held that "[c]ivil actions brought by a government entity to enforce nuisance laws have been held to justify Younger abstention." Woodfeathers, Inc. v. Washington County, Or., 180 F.3d 1017, 1021 (9th Cir. 1999) (emphasis added). Indeed, in World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987), the Ninth Circuit held that a civil action brought by a municipality "to obtain compliance with [a municipal zoning] ordinance which aime[ed] at avoidance of public nuisances" implicated important state interests justifying abstention.
Plaintiffs also assert that Younger does not apply because there is no criminal action pending against them.[34] As the Supreme Court recently reiterated, however, "civil enforcement proceedings'" can trigger Younger abstention. See Sprint Communications, Inc., 134 S.Ct. at 588; see also Woodfeathers, Inc., 180 F.3d at1021 ("[c]ivil actions brought by a government entity to enforce nuisance laws have been held to justify Younger abstention"); World Famous Drinking Emporium, 820 F.2d at 1082 (a civil action filed by a municipality "to obtain compliance with [a municipal zoning] ordinance which aime[ed] at avoidance of public nuisances" qualified for Younger abstention).
Here, the City has filed a civil action to enjoin a public nuisance. Younger is therefore properly invoked. In fact, the interest at stake is essentially as great as it would be if a criminal proceeding were involved, given that the City has the ability to prosecute violations of the billboard ban as misdemeanors under the Corona Municipal Code. See CORONA MUNICIPAL CODE § 1.08.020 ("It shall be unlawful for any person to erect, construct, enlarge, alter, repair, move, use, occupy, or maintain any real or personal property or portion thereof in the city or cause the same to be done contrary to or in violation of any provision of this title.... [A]ny person violating any of the provisions or failing to comply with the requirements of this title, ... is guilty of a misdemeanor or infraction at the discretion of the City Attorney"); City of Corona v. Naulls, 166 Cal.App.4th 418, 433 (2008) ("Section 1.08.020, subdivision (A), of the City's municipal code provides that, unless a different penalty is prescribed, the violation of any provision of or failure to comply with any of the requirements of the code is punishable as a misdemeanor. Additionally, pursuant to section 1[.]08.020, subdivision (B), any condition caused or permitted to exist in violation of any of the provisions of this code is a public nuisance and may be, by this city, abated as such'"). Under Huffman and its progeny, because the state court proceeding is a civil enforcement action seeking to abate a public nuisance, it implicates important state interests for purposes of Younger abstention.
iii. Adequate Opportunity to Litigate Federal Claims
To invoke Younger abstention, plaintiffs "need be accorded only an opportunity to fairly pursue [their] constitutional claims in the ongoing state proceedings." Juidice v. Vail, 430 U.S. 327, 337 (1977) (emphasis added). " Younger requires only the absence of procedural bars' to raising a federal claim in the state proceedings." Communications Telesystems Int'l v. California Public Utilities Commission, 196 F.3d 1011, 1020 (9th Cir. 1999) (citing Middlesex County Ethics Commission, 457 U.S. at 432 ("[A] federal court should abstain unless state law clearly bars the interposition of the constitutional claims'")); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987) (holding that a federal plaintiff must show "that state procedural law barred presentation of [his] claims'"). "[A] federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary." Pennzoil Co., 481 U.S. at 15; Meredith v. Oregon, 321 F.3d 807, 818 (9th Cir. 2003) (same). Stated differently, Younger abstention "presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved." Gibson v. Berryhill, 411 U.S. 564, 577 (1973).
Plaintiffs assert claims for violation of the First Amendment to the United States Constitution and violation of the equal protection and free speech clauses of the California constitution. There is no question that they have an opportunity to raise these claims in the state court action. Indeed, AMG filed a counterclaim in state court alleging precisely these claims on January 16, 2015.[35] The fact that plaintiffs allege First Amendment violations does not change this fact. "[T]he mere assertion of a substantial constitutional challenge to state action will not alone compel the exercise of federal jurisdiction." NOPSI, 491 U.S. at 365. "Minimal respect for... state processes... precludes any presumption that the state courts will not safeguard federal constitutional rights." Middlesex County Ethics Commission, 457 U.S. at 431. " Younger itself involved a First Amendment challenge to an ongoing criminal prosecution, but even that was insufficient to require the federal court to ignore principles of federalism and interfere with the state's proceedings." Baffert v. California Horse Racing Bd., 332 F.3d 613, 619 (9th Cir. 2003) (citing Younger, 401 U.S. at 43-45). Thus, the importance of the First Amendment rights at stake in this action does not alter the abstention analysis. See Middlesex County Ethics Commission, 457 U.S. at 431 (abstaining in a case that sought to enjoin a state ethics proceeding despite plaintiff's claim that the proceeding violated his First Amendment rights); see also Younger, 401 U.S. at 54 ("It is sufficient for purposes of the present case to hold, as we do, that the possible unconstitutionality of a statute on its face' does not in itself justify an injunction against good-faith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief"); World Famous Drinking Emporium, Inc., 820 F.2d at 1082 ("A First Amendment challenge does not alter the propriety of abstention in [an action seeking to enjoin enforcement of a zoning ordinance]"). Accordingly, Younger 's third prong is also satisfied in this case.
iv. Whether the Federal Action Would Enjoin or Have the Practical Effect of Enjoining the State Court Proceedings
Having concluded that the Younger factors counsel in favor of abstention, the court must next decide whether the "federal court action... would enjoin the [state court] proceeding, or have the practical effect of doing so." Gilbertson, 381 F.3d at 978. The state court enjoined AMG and others from "operating, allowing, using, and advertising on the [ ] billboard located at 3035 Palisades Dr., Corona, California." It further ordered them immediately to "remove the billboard, including the pole, the panels, and the entire structure, " and restrained and enjoined them from "constructing or erecting any additional billboards in the City of Corona without first obtaining all required permits."[36] The propriety of the injunction is presently being appealed.
Plaintiffs in this case seek to have the court enjoin the City from (1) "[i]nterfering with the operation or maintenance of billboards at... 3035 Palisades [Dr.], Corona[, California]"; (2) threatening plaintiffs' lessors or advertisers with enforcement actions or fines; (3) claiming that the billboards are illegal or being operated illegally; (4) attempting to collect fines as a result of the operati[on] of the billboard; and (5) taking any other action adverse to the billboard.[37] Given the relief plaintiffs seek, the court concludes that this action would have the practical effect of enjoining the state court proceedings. Plaintiffs seek to have the court issue an injunction directing the City to cease interfering with the maintenance of their billboards, and the ultimate relief they seek in this action is a declaration that the provision of the Corona Municipal Code that regulates billboards is unconstitutional. This would unquestionably preclude the continued prosecution of the civil enforcement action pending in state court. Like the plaintiff in Younger, therefore, they seek to enjoin the City "from [enforcing] California [municipal ordinances], [which is] a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances." See 401 U.S. at 41; see also Huffman, 420 U.S. at 604-05 ("Similarly, while in this case the District Court's injunction has not directly disrupted Ohio's criminal justice system, it has disrupted that State's efforts to protect the very interests which underlie its criminal laws and to obtain compliance with precisely the standards which are embodied in its criminal laws"); Outdoor Media Dimensions, Inc. v. Warner, 58 Fed.Appx. 293, 294 (9th Cir. Feb. 19, 2003) (Unpub. Disp.) (holding that Younger abstention was warranted in an action challenging the constitutionality of Oregon statutes proscribing the use of billboards due to the pendency of state administrative proceedings).
v. Exceptions to Younger Abstention
"In Younger, the Supreme Court stated that federal courts may enjoin pending state court proceedings in extraordinary circumstances, ' such as when the statute involved is flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.'" Dubinka v. Judges of Superior Court of State of Cal. for County of Los Angeles, 23 F.3d 218, 225 (9th Cir. 1994) (quoting Younger, 401 U.S. at 53-54 (in turn quoting Watson v. Buck, 313 U.S. 387, 402 (1941))). In addition, "[b]ad faith prosecution or harassment make abstention inappropriate even where [the Younger ] requirements are met." World Famous Drinking Emporium, Inc., 820 F.2d at 1082 (citing Younger, 401 U.S. at 47-49).
The ordinance at issue here bans off-site, commercial billboards. It is well settled that such bans are constitutional under the Supreme Court's Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), test for government regulation of commercial speech. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 511-14 (1981) (holding that it was permissible to distinguish between on-site and off-site commercial signs, while declaring a San Diego ordinance unconstitutional because of its general ban on noncommercial signs); Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 814 (9th Cir. 2003) ("The Supreme Court, the Ninth Circuit, and many other courts have held that the on-site/off-site distinction is not an impermissible content-based regulation"); Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 610-11 (9th Cir. 1993) (" Metromedia remains the leading decision in the field, holding that a city, consistent with the Central Hudson test, may ban all offsite commercial signs, even if the city simultaneously allows onsite commercial signs"). This is true even where, as here, they "grandfather" existing billboards and permit them to remain. See Maldonado v. Morales, 556 F.3d 1037, 1048 (9th Cir. 2009) (holding that the grandfathering clause of the California Outdoor Advertising Act had only to survive "at most, an intermediate level of scrutiny" and holding that "[t]he state's interest is substantial and easily passes the necessary scrutiny to overcome [an] equal protection challenge"). Thus, the billboard bans at issue here are not flagrantly and patently unconstitutional.
The Supreme Court's recent decision in Reed v. Town of Gilbert, Ariz., ___ U.S. ___, 2015 WL 2473374 (U.S. June 18, 2015), does not alter this conclusion. As the City notes in reply, in terms of its application to this case, Reed is most notable for what it is not about, and what it does not say. In Reed, the Court considered a municipal code that
"prohibit[ed] the display of outdoor signs without a permit, but exempt[ed] 23 categories of signs, including three relevant [to the case]. Ideological Signs, ' defined as signs communicating a message or ideas' that [did] not fit in any other Sign Code category, [could] be up to 20 square feet and ha[d] no placement or time restrictions. Political Signs, ' defined as signs designed to influence the outcome of an election, ' [could] be up to 32 square feet and [could] only be displayed during an election season. Temporary Directional Signs, ' defined as signs directing the public to a church or other qualifying event, ' ha[d] even greater restrictions: No more than four of the signs, limited to six square feet, [could] be on a single property at any time, and signs [could] be displayed no more than 12 hours before the "qualifying event" and 1 hour after. " Id. at *1.
The Court held that the ordinance was a content-based regulation of speech that could not survive strict scrutiny. See id. at *6 ("On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny").
Reed does not concern commercial speech, let alone bans on off-site billboards. The fact that Reed has no bearing on this case is abundantly clear from the fact that Reed does not even cite Central Hudson, let alone apply it. Metromedia, 453 U.S. at 511-14, and its progeny remain good law; the City's sign ban is therefore not patently unconstitutional.
Plaintiffs also contend that the City is discriminating against them under the California constitution. To the extent plaintiffs maintain that this amounts to "bad faith" for purposes of Younger, they are mistaken. "Three factors that courts have considered in determining whether a prosecution is commenced in bad faith or to harass are: (1) whether it was frivolous or undertaken with no reasonably objective hope of success; (2) whether it was motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights; and (3) whether it was conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions." Phelps v. Hamilton, 59 F.3d 1058, 1065 (10th Cir. 1995). Focusing on "[t]hese factors [is] important because the cost, anxiety, and inconvenience of defending against a single prosecution brought in good faith is not enough to establish the great and immediate' threat of irreparable injury necessary to justify enjoining pending state proceedings." Id.
The complaint contains no allegations suggesting that any of these factors is present. As noted, off-site commercial sign bans have repeatedly and consistently been upheld as constitutional. Plaintiffs are business entities that are not (and do not purport to be) members of a suspect class. Finally, there is no assertion that the City's conduct amounts to harassment or an abuse of prosecutorial discretion. That there is no bad faith here is further reinforced by the fact that bans such as the one at issue here have repeatedly been upheld as valid, and the state court has granted the City's application for temporary restraining order and motion for a preliminary injunction restraining further violations of the off-site sign ban. See Kugler v. Helfant, 421 U.S. 117, 126 n. 6 (1975) (explaining that a bad faith prosecution "generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction"). Moreover, the mere fact that plaintiffs assert an equal protection claim does not preclude a finding that Younger abstention applies. See, e.g., Pennzoil Co., 481 U.S. at 10-17 (district court should have abstained in action alleging due process and equal protection violations); San Remo Hotel v. City & Cnty. of San Francisco, 145 F.3d 1095, 1103 (9th Cir. 1998) ("The amendment of Field's complaint to state an equal protection claim would have been futile because the district court would have had to dismiss the claim under Younger v. Harris "). Plaintiffs therefore have failed to demonstrate that any exceptions to Younger abstention apply.
vi. Conclusion Regarding Younger Abstention
In sum, the court finds that the state court proceedings are ongoing, that they implicate important state interests related to the enforcement of nuisance laws, and that they provide plaintiffs an adequate opportunity to litigate their federal claims. Furthermore, exercising jurisdiction over this case would have the practical effect of enjoining the state court proceedings. In addition, plaintiffs do not argue, and the court does not conclude, that any of the Younger exceptions is applicable. Thus, the court concludes that it is appropriate to abstain under Younger.
The City requests that the court dismiss the action. In Gilbertson, the Ninth Circuit held "that Younger principles apply to actions at law as well as for injunctive or declaratory relief because a determination that the federal plaintiff's constitutional rights have been violated would have the same practical effect as a declaration or injunction on pending state proceedings." See 381 F.3d at 968. The court held, however, that "federal courts should not dismiss actions where damages are at issue; rather, damages actions should be stayed until the state proceedings are completed." Id.; ScripsAmerica, 56 F.Supp.3d at 1143 ("in a case in which the plaintiff seeks damages, the court determines that the Younger abstention is appropriate, it should stay the matter until the state court proceedings are concluded, rather than dismissing the action"); Nichols v. Brown, 945 F.Supp.2d 1079, 1095 (C.D. Cal. 2013) ("While the Younger abstention doctrine requires dismissal where declaratory or injunctive relief is sought, and a federal court should abstain from a damages claim where a necessary predicate of the claim for damages undermines a necessary element in the pending state proceeding, the court should stay, not dismiss, damages claims only until the state proceedings are completed'").
Plaintiffs seek declaratory and injunctive relief, as well as damages resulting from enforcement of the City's off-site commercial billboard ban. The court therefore cannot dismiss the action, but instead must "stay its hand until state proceedings are completed." Gilbertson, 381 F.3d at 968; ScripsAmerica, 56 F.Supp.3d at 1143 ("in a case in which the plaintiff seeks damages, [if] the court determines that the Younger abstention is appropriate, it should stay the matter until the state court proceedings are concluded, rather than dismissing the action"); Ambat v. City & County of San Francisco, No. C 07 3622 SI, 2007 WL 3101323, *6 (N.D. Cal. Oct. 22, 2007) ("Here, because Younger applies and plaintiffs seek damages along with injunctive relief, the Court stays the proceeding pending resolution of the state court action").
D. Plaintiffs' Motion for Preliminary Injunction
Given the court's conclusion that it must abstain under Younger, it "is required by law to deny [p]laintiff[s'] motion for a preliminary injunction." Carrick v. Santa Cruz Cnty., No. 12-CV-3852 LHK, 2012 WL 6000308, *10 (N.D. Cal. Nov. 30, 2012); Crayton v. Hedgpeth, No. CV 08 00621 WHA (PR), 2009 WL 3379789, *2 (E.D. Cal. Oct. 19, 2009) ("Accordingly, absent some allegation that any exception to Younger applies, this court defers to the superior court proceeding and denies plaintiff's motion for preliminary injunction."). Plaintiffs' motion for preliminary injunction is therefore denied.
For the reasons stated, the court concludes that Younger abstention is warranted in this case. Accordingly, it stays plaintiffs' claims until the state court proceedings have concluded. Because Younger abstention is appropriate, plaintiffs' motion for a preliminary injunction is denied.
The parties are directed to file joint briefs apprising the court of the status of the state court proceedings every ninety (90) days.
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Take Airport Blvd (SR-202) to I-95 South (1.5 mi) I-95 South to Butler Blvd (SR-202) Exit #344 (20 mi) Head West(right) on Butler Blvd to Bonneval Rd. (.1 mi) Turn Right onto Bonneval Rd., continue through round-about (.25 mi) Hotel on right side at the corner of Bonneval Rd. & Lenoir Ave.
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A personal injury lawyer works with clients who have suffered a physical or emotional injury, usually by accident or mistake. They cover cases such as car accidents, botched surgery, and harassment. Personal injury attorneys know how the insurance claim process works, they know what evidence to gather, and they know how to calculate and present a claim for damages. Many personal injury attorneys take cases on a contingency basis, which means they receive an agreed-upon percentage of the payment you receive, also called the personal injury settlement. If you don't recover any money, they don't get paid their fee. Personal injury lawyers also know how to defend you if someone thinks an injury is your fault.


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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Essay:
activity I completed was an internship at Public School 180. During the course of this internship I was able to engage in several prolonged activities with my mentor, Mr. Gary Williams, who was the principal of the school. The form of interaction I had with Mr. Williams involved a formal interview session with him, as well as a meeting near the end of the internship in which he helped to clarify a number of ideas for me related to one of the focuses of my activity, the exploration of the value of personal/professional relationships as related to promotions. Mr. Williams was instrumental in enabling me to revise my viewpoint on this issue, as were a pair of articles I read related to this subject including Roof and Presswood's (2004) valuation of charisma as a key characteristic of leadership (p.3). Additionally, from Adamek's article (2007) I learned the importance of fostering an inner circle (p. 121), which I was able to readily incorporate into my internship as well.
Program Outcome Rationale
The overarching theme of this internship was to help me cultivate my skills as a leader. In light of my chosen profession, my role as a leader is multifaceted. As an elementary school teacher, I will need to be a positive, constructive leader for my students to inspire them to strive for success in their education. Additionally, I was hoping to foster my leadership skills among like-minded professionals, administrative personnel, family and friends of students, and among the community in general as well.
I was able to successfully fulfill my role in the internship as a person who cares both about his fellow students as well his fellow teachers. One of the key leadership dispositions is life-long learning. My involvement with Mr. Williams, a longstanding educator and principal, showed me first-hand the value of continuing to learn every day. Another specific outcome indicator is the pursuit of excellence. I was well aware of the fact that excellence is about more than quantitative measurements, including grades. I truly believe that my experience in my internship enabled me to understand and develop leadership skills pertaining to professional socializing that bring me substantially closer to achieving excellence as a pedagogue.
Mentor Interview
My interview with Gary Williams, the principal of PS 180, was frank and to the point. I was able to learn much from it, particularly the value of followers and input from others to a leader. Mr. Williams emphasized that one of the most important things leaders and principals need is feedback from those interacting with students and parents. He also discussed his professional network, and how that aids him in doing his job of caring for and educating students.
Educational Leadership Platform
My educational leadership platform was included my goals for internship, which were to learn how to become a better teacher, obtain substantial classroom experience, and to perform a variety of tasks that would enable me to achieve these goals. I was able to significantly interact with a number of students of diverse populations, which was well aligned with my background since the bulk of my own education was conducted in a diverse environment with students of all varieties of backgrounds, ethnicities and religions.
During the relatively brief time in which I participated in this internship, I was able to help students with some of the tools that they will need to critically think and pursue learning throughout their lifetime. A review of the Pearson Education Platform Leadership Dispositions revealed that of all the areas, my primary strength is in lifelong learning. As such, I attempted (and had some success in) transmitting this quality into some of the students with whom I worked.
The work which I pursued during this internship relating to the networking skills and establishment of professional relationships that is necessary helped to address the area I required the most improvement in, excellence. Mr. Williams' feedback helped in this area. Specifically, he taught me the importance of fostering social relationships with faculty and staff and to distinguish them from my personal life.
Professional Development
The professional development experiences I participated in related to the leadership area I was striving to improve, excellence, because they taught me the value of professional networking. I was skeptical about promotions based on nepotism and personal relationships. However, I read a couple of important artciles (which I mentioned earlier int his report) that indicated that fostering professionals relationships is one of the critical facets of leadership itself.
Moreover, there are certain intrinsic qualities in a leader -- such as charisma -- that are essential for inspiring and motivating others to follow. These qualities play a part in cultivating professional relationships as well as assist in developing leadership skills. Therefore, my experiences in professional development helped me to understand and develop these qualitative characteristics of leadership, which have aided me in achieving excellence in this profession.
Mentor Meeting
My mentor, Mr. Gary Williams, is the principal of my school, PS 180. As my mentor, Mr. Williams is aware of my concerns that leadership positions are not awarded based on merit, but due to what would frequently be described as nepotism. In prior conversations, Mr. Williams has endeavored to help me understand that relationship development is a key element of leadership. I have previously been resistant to this advice, not because I did not trust his advice, but because I feared that I did not have the natural ability to be the type of people-person that I saw in these relationship-based leadership positions. However, my exposure to these two sources of professional development helped me understand that these skills can be developed.
Mr. Williams suggested that I begin by working on developing my inner circle. As my mentor, I have been invited into Mr. William's inner circle and have consistently and reliably fulfilled my duties and obligations to him in that capacity. What I did not realize is that my consistent performance in his inner circle had put me into contact with numerous people I could include in my own inner circle. Furthermore, working with Mr. Williams, I had been identified as a vital member in the inner circles of other influential people in my work environment. What was interesting, however, was, because I had not been the team leader on many of these projects, I did not always identify potential inner circle members with accuracy. We discussed one potential member of my inner circle who had seemed very competent when we worked together on one specific project. He wanted me to ensure I was evaluating her total performance, not simply the confidence she projected in the meetings related to the project.
Another factor that we considered was the socialization aspect of leadership. Mr. Williams stressed that it was important to develop friendships, because I wanted to be able to inspire people to follow me because they believe in me and do not question my integrity. He wanted me to understand that there is a difference between cultivating workplace friendships, so that I have an amicable relationship with people in the workplace, and developing other friendships. For example, he reminded me that if I achieve my desired leadership position, I may be in a place where I need to evaluate and possibly discipline my friends. He reminded me that I need to be able to do so without allowing my personal feelings to interfere with my professional judgment. He did, however, remind me that personal relationships can help me be aware when a coworker is experiencing personal difficulties, and place me in a good position to help avoid any work-related problems that might result from those personal difficulties. Furthermore, Mr. Williams suggested that I work carefully to cultivate a separation between my personal and professional lives. He reminded me that any…[continue]
"Activity I Completed Was An Internship At" (2013, September 26) Retrieved December 7, 2016, from http://www.paperdue.com/essay/activity-i-completed-was-an-internship-at-123079
"Activity I Completed Was An Internship At" 26 September 2013. Web.7 December. 2016. <http://www.paperdue.com/essay/activity-i-completed-was-an-internship-at-123079>
"Activity I Completed Was An Internship At", 26 September 2013, Accessed.7 December. 2016, http://www.paperdue.com/essay/activity-i-completed-was-an-internship-at-123079
Internship Narrative Review with the supervisor the required activities. My supervisor and I discussed how I completed all the relevant activities for the months of August and September and reviewed any issues. Meet weekly with your supervisor for supervision. My supervisor and I set a weekly schedule for meetings with the understanding that if I need to, I can reach out and speak to her even outside of our appointment time, which
This is the path that I had generally felt I wanted to take with my career, and after this internship I still feel that is the right choice for me. There is a certain freedom that comes with being your own boss. Yes, there is marketing involved but that to me is a welcome break from the usual tasks. Knowing that all of the fruits of my hard work
However, what does seem clear is that there are not sufficient ethical guidelines for the finance business. Kookmin Bank seemed very welling to address the issue of ethics. Rather than allowing employees to read and personally interpret ethical rules, Kookmin gave a very in-depth training to employees regarding those rules. This training went a long way towards clearing up misconceptions. That is important because many ethical issues begin with
Internship Narrative: I have had the pleasure to work undergo a counseling internship at Catholic Charities, a mental health counseling agency. The internship has been quite helpful in my process to become a counselor through the educational, challenging, and rewarding practicum experience I obtained from the agency. During this period, I was assigned some tasks that were relatively new in my learning experience and provided significant challenges at first. However, the
After meeting Ms. Aida Ortiz, CMA's Human Relations Specialist, she presented a brief overview of the office and explained the particular responsibilities my internship would encompass during the two-week period. The first "order" was to have my port ID made. After being officially identified as part of the intern program, Ms. Ortiz and I attended the 0930 morning operations meeting. After the meeting, I worked with Jackie Fisher, supervisor
Dream: I become a business consultant in a company that specializes in developing marketing strategies for cosmetics products. • My Life Role: College student • My Long-Term Goals in This Role: I earn an associate of arts (A.A.) degree by June 2012. I earn a bachelor of arts (B.A.) degree by June 2014. I participate in a two-month business internship in an advertising company in the summer of 2014. I earn a master of business
Education Administration This internship in education administration provided me with a number of takeaways that will benefit me throughout my career. I learned how to create a safe, collegial environment for change in teacher practice. My strategies enabled a full court press on the issues facing the math department, and strengthened the will of the team to get the job done by insisting each member believes it is important to "Do


text: Home > Sex > Multimedia Multimedia All sections in Multimedia » Fitness » Man » Diet and nutrition SEE: What happens to your body during sex? There are 4 stages of sex and each one affects the body differently. Latest Multimedia How porn addiction can affect your sex life Fun facts on STIs The sex addiction cycle How to use a female condom Best sex positions for those who suffer from back pain The science of orgasms explained 4 sexercise moves 5 risky sex positions Top risk factors for STIs load more multimedia advertisement From our sponsors Sun protection for all children Understanding your sunscreen The science behind cosmeceuticals Do you know these 5 facts about skincare? Live healthier The debate continues » Working out in the concrete jungle 7 top butt exercises for guys 10 things pole dancing can do for you The running vs. walking debate There are many different theories when it comes to the running vs. walking for health and weight loss. Veganism a crime? » Running the Comrades Marathon on a vegan diet Are vegans unnatural beasts? Can a vegan be really healthy? Should it be a crime to raise a baby on vegan food? After a number of cases of malnourishment in Italy, it may become a crime to feed children under 16 a vegan diet.


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Virginia Senate, District 12
From Wikipedia, the free encyclopedia
District 12 of the Virginia Senate is a senatorial district made up of parts of Henrico County and Hanover County in the U.S. state of Virginia. This district is currently represented by Walter Stosch.
|This Virginia-related article is a stub. You can help Wikipedia by expanding it.


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Economic Transformation Program
Program Overview
As part of the 2016-17 State Budget, Governor Cuomo and the Legislature revised the Economic Transformation Program to support the economies of communities affected by the closure of certain mental health facilities. The Economic Transformation Program provides tax credits for projects that leverage investments to create jobs and support economic development initiatives at these closed facilities.
The Program will be available to eligible businesses that locate at closed mental health facilities within the metropolitan commuter transportation district.
How to Apply:
Provided below is a link to the application which must be
completed and sent to the ESD Mid-Hudson Regional Office by
September 1, 2016.
Economic Transformation and Facility Redevelopment Program Application
For more information and to initiate an application, contact the ESD Mid-Hudson Regional Office.


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Anyone else exercising still? If so, what are you doing?
I'm probably averaging 3-4 workouts a week - usually 2 swims and 2 walks. Starting prenatal yoga in July!
Last night I walked for about an hour with a backpack ... stopped part way through to get some delicious cherries. Today I am SORE. I'm just not used to being so "wimpy"- especially since I really don't have much of a belly yet. Is this normal?


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Sci fi/Fantasy image byJamie Reynolds
Handsom no? In that dark sort of way that says, 'look at me... my wings arnt attatched to my body.....' Gotta love that, eh? (i dont like things with wings)
Published More than a year ago
Category Fantasy
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Nymex names Bailey COO and CFO
The New York Mercantile Exchange has appointed Jerome Bailey chief operating officer and chief financial officer. He replaces acting chief financial officer Kenneth Shifrin, who remains senior vice president of finance for Nymex.
Bailey joins the Nymex from Marsh, a unit of insurer Marsh & McLennan, where he was also chief financial officer.
He held the corresponding role at Dow Jones and Salomon Brothers, and was controller and a managing director of Morgan Stanley.
The move comes as Nymex seat holders prepare to vote next week on a plan to sell a 10% stake in the exchange to private equity firm General Atlantic.
Meanwhile, the Nymex has criticized customers for turning their backs on its European open outcry market just six months after its launch. The exchange is now preparing to switch all trading to screens.
Andy Gooch, chief executive of Nymex Europe, told Financial News: "Nymex listened to its customers in launching the open outcry market in November 2004. By looking at the volumes it is clear that those who said they wanted the service didn't.
"It is disappointing for Nymex, but there is no point in continuing to provide a service that is not wanted."
Nymex launched the open outcry market in London last September in a direct challenge to the International Petroleum Exchange, which made trading in energy futures fully electronic last year despite calls from some members to keep trading floor-based.
Following spiralling volumes at Nymex Europe, the exchange is now preparing to apply for board and regulatory approvals to switch to electronic trading.
Gooch said: "There is still an approval process to go through internally and externally before the market can stop offering open outcry in London and go electronic. We are starting that process now." He added that there was no timetable for completing the switch.


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What was the first concert you went to see?
My first concert I saw was New Kids on the Block with my mom, aunt, sisters and cousin. I went to another NKTB concert when I was little also. Then again about 4 or 5 years ago. I think my DH was one of two men at the concert. They even turned the men's restrooms in womens so he had no place to go.
I think technically my first concert was a Randy Travis concert when I was in early elementary school. My parents took me because they couldn't get a babysitter. The first concert I remember wanting to go see was Dave Matthews Band when I was a freshman in High School. My cousin took me and her best friend. I've seen him 3 times since but there's something about your first time
The Osmonds...I was about 6.
I went to see the Monkees in high school with my best friend and parents. My mom was a huge Davey Jones fan so I got a kick out of seeing her there. Then shortly after that I went and saw Aerosmith...who were awesome!
The Offspring with a savory character who was a complete gentleman that night. Lots of indoor pot smoking (not by me), fiery mosh pits, etc. Needless to say this young high school freshman was wide eyed.
Will make me think twice when Luke asks to go to his first concert.


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Appeal from the Circuit Court of Cook County; the Hon. WILLIAM
S. WHITE, Judge, presiding. Judgment affirmed.
Rehearing denied February 17, 1970.
Defendant, Jean L. DeSavieu, was charged with robbery. After a bench trial he was found guilty of that crime and sentenced to a term of 2 to 7 years. On this appeal, defendant contends that he was not proved guilty beyond a reasonable doubt, and that the identification procedure was so inherently suggestive that he was denied a fair trial.
Marnella Rederer, manager of a food store located at 4136 South Wentworth in Chicago, was robbed in the store on April 15, 1966 by two men, one of whom was masked. Two delivery men and a helper who were in the store during the robbery were forced into the basement, and were unable to identify either robber. The complaining witness identified defendant as one of the robbers. She testified that it was he who jumped over the counter next to her. He asked for the money, and she pointed to a file cabinet where the money was kept. Defendant took the money out of the drawer, and at the same time held a sawed-off shotgun on her. He then jumped over the counter again, and he and his companion fled. The incident took nearly five minutes. The store was well lighted, and defendant came next to her to take the money. He was approximately six to eight inches from her. She kept looking at defendant's face so that she would not forget it. She also testified that after the robbery she had a conversation with Officer McLeod of the Chicago Police Department. He brought many photographs to her. She did not remember how many, but she could not identify any of them. He then showed her a photograph of defendant, and she recognized him as one of the robbers. The officer did not suggest to her who the robber was. Officer McLeod testified that he showed the complaining witness about twenty photographs, and that she identified defendant as one of the robbers from those photographs.
On April 25, 1966, the complaining witness viewed three men in a lineup, and identified defendant as one of the robbers. The other two men in the lineup were about the same height and weight as defendant.
The complaining witness recalled having a conversation with defendant's attorney some time prior to trial, but denied telling him that all Negroes look alike. She did tell the attorney that she had been unable to identify a man from a previous robbery.
One of the delivery men and the store clerk testified for the defense that they were present when two armed men robbed the store. They were forced into the basement by one of the robbers. They never had an opportunity to see either robber, and were unable to identify anyone. The delivery man testified that the robber in question was carrying a rifle.
Defense counsel testified that he had a conversation with the complaining witness a couple of months prior to trial. She told him that a detective had brought some photographs, but that she could not identify them because all Negroes look alike. The detective then brought one photograph and told her that this was the man, and she then identified him at a lineup. The attorney also testified that she discussed another robbery with him.
After both sides rested and had made final argument, the trial judge allowed a defense motion to reopen the case for additional cross-examination concerning the identification. The complaining witness testified that at the time of the robbery defendant was wearing a brown speckled coat, and had a hat or cap on his head. He was shorter and stockier than the other robber, who was thin, and was masked. Because she was unable to identify the man who had robbed her previously, she concentrated on defendant's face so that she would not forget it. She could not recall what other description she had given the police concerning the robber.
Officer McLeod was also called for additional cross-examination as to the identification of defendant. The officer testified that he had received a detailed description from a witness who was outside the store at the time of the robbery. The officer also testified that the complaining witness described the robber in question as being 5 feet, 8 inches tall, with a mustache and black hair. She described him as having a dark complexion, but did not give his weight.
Defendant first contends that the identification made by the State's sole eyewitness was so vague, doubtful and unworthy of belief that it failed to establish defendant's guilt beyond a reasonable doubt.
[1-3] It is well settled that a positive identification by one witness with sufficient opportunity to observe the defendant may be sufficient to sustain a conviction. People v. Mack, 25 Ill.2d 416, 185 N.E.2d 154 (1962); People v. Upshaw, 58 Ill. App.2d 256, 207 N.E.2d 728 (1965). And the adequacy of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the trier of fact with the superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor while on the witness stand. People v. Jackson, 28 Ill.2d 566, 192 N.E.2d 873 (1963). In weighing the evidence of identification, the surrounding circumstances, together with the probability or improbability of an adequate opportunity for definite observation must be considered. People v. Marshall, 74 Ill. App.2d 472, 221 N.E.2d 128 (1966).
In the instant case, we see no reason to disturb the trial court's finding that the identification was accurate. The complaining witness had an excellent opportunity to observe defendant for nearly five minutes in a well-lighted store. Moreover this observation was made at close range, since she testified that, while defendant was taking the money, she was just a few inches away from him. She also testified that she kept on looking at his face so that she would not forget it. She explained this concentration on the fact that she was unable to identify the perpetrator of a previous robbery. She also identified defendant at a properly conducted lineup. While she was unable to recall the extent of her description to the police, the police officer testified that she did give a general description of the robber in question.
Defendant has not called our attention to any internal discrepancies in complaining witness's testimony. There were only minor discrepancies in the State's case. The delivery man testified that the robber was carrying a rifle, while the complaining witness testified that he was carrying a sawed-off shotgun. The police officer testified that the complaining witness selected defendant's photograph from a group of about twenty pictures shown to her, while she testified that she was unable to identify any of the pictures from the group shown to her, and that then the police officer showed her a photograph which she recognized as the robber. We do not believe that such minor discrepancies discredit the testimony of the complaining witness.
The complaining witness denied unequivocally that she told defense counsel that she was unable to identify the robber because all Negroes look alike. This testimony merely presented a conflict in the evidence which was resolved by the trier of fact.
Defendant next contends that the identification procedure was so unduly suggestive as to have denied him a fair trial.
The complaining witness testified that the police officer first produced a large number of photographs, from which she was unable to identify either of the robbers. The officer showed her a photograph of defendant, and she identified him as one of the robbers. She also testified that the officer never made any suggestion to her as to who the robber was. While the police officer testified that she selected defendant's picture from the initial group of photographs shown to her, for the purpose of the argument that the photographic identification was unduly suggestive, we will accept the testimony of the complaining witness that she viewed defendant's picture separately.
An out-of-court identification may be so suggestive as to deny defendant's right to due process; whether it is so suggestive depends upon the circumstances of each case. Stovall v. Denno, 388 U.S. 293 (1967). This principle has been extended to photographic identifications. Simmons v. United States, 390 U.S. 377 (1968). However in the Simmons case, in affirming the conviction, the court stated that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification was so suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
Under the standard enunciated in the Simmons case, we find that the photographic identification in the instant case did not violate due process. The complaining witness had an excellent opportunity to view defendant during a daytime robbery in a well-lighted store. During the robbery, defendant stood only a few inches from her for several minutes while he obtained the money, and she testified that she concentrated on his face so that she would not forget him. She testified that she was shown a large group of pictures, but was unable to identify any of them. She was then shown a picture of defendant, and immediately identified it. Several days later, she identified defendant in a properly conducted lineup. It seems evident that the complaining witness's identification of the defendant at trial was independent of the photograph, and was based on her observation of defendant at the scene of the crime.
Defense counsel testified that the complaining witness informed him that she was unable to identify anyone and that the police officer, when showing her defendant's picture, told her that this was the man. However the complaining witness denied making those statements and testified that the officer made no suggestion as to who the robber was. As we have noted, this testimony presented a conflict of evidence properly resolved by the trial judge. We therefore conclude that the fact that defendant's photograph was viewed separately was not so suggestive, without more, as to violate due process or to render inadmissible the in-court identification of defendant.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
DEMPSEY, P.J. and SCHWARTZ, J., concur.
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My son is 18 years old and needs two attorneys, one for DUI and one for another case of aggregated assault. We live in Georgia. He lives at home. He needs lawyers, but the clerks of the court say I have to pay for his attorneys. I make over the m...
Some county courts put a lot of pressure on parents to pay for adult children with pending crimes who cannot otherwise pay for representation. Although you are feeling that pressure now, eventually, when this comes to the attention of the judge (as opposed to the administrators of the public defender program) ,the court will likely reconsider and grant him an appointed lawyer. I respectfully add that when you are appointed a lawyer, you get whoever the county says you will get and quality varies wildly. Given the gravity of the situation, you may want to reconsider your decision to not get involved this matter.See question
What are my options? I live here in Georgia. I have a 2 page Founders agreement we all signed. I have documentation on the investment made. They are collecting monies this month from a client we signed in May.
You need to hire an attorney to file an application for a restraining order in the appropriate superior court in order to get them to immediately halt this conduct. This could be a criminal case but for immediate relief you need to pursue the restraining order route. A lawyer can further advise if this rises to the level of a criminal case.See question
BAC: .136 This is my first DUI offense and it is also my first offense ever I am 24.
I've been practicing law for over 30 years and if I got a DUI case I wouldn't represent myself because that would be a suicidal thing to do. No lawyer in their right mind would tell you on an internet site of in person how to represent yourself in a DUI case. I suggest that you do whatever you can to get yourself a lawyer.See question
"i recently got in trouble for the first time ever in my life and my mother told me to plead no contest and i was not guilty i was charged for criminal trespass but i was never caught on there property nor was i arrested on there property.
No contest is viewed by most as a guilty plea. You need to consult with a lawyer. You really don't want this to affect your reputation or ability to go to school or get a good job.See question
I am being charged with felony theft by taken. My case has been moved to a trial and I have arraignment on Friday and I don't know what to plea. This is my first offense and I'm sure of what to do.I really need some help
You must hire a lawyer as soon as possible. If you are unable to do so you must apply for an appointed lawyer. At arraignment the judge may ask you if you have a lawyer and discuss with you the prosess of applying for an appointed lawyer. The judge will tell you that he or she is noting for the record that you are pleading "not guilty" and your case will be scheduled for a jury trial.See question
My fiancé is in Georgia working on trying to get home. He's in for armed robbery but has other charges on his record as well.
No, unfortunately it is not possible to get a criminal record expunged when one is still in prison.See question
he has had several court dates scheduled, but no trail.
Yes this is legal. Generally the more serious the crime, such as this one, the longer it takes to go to trial. Your brother probably has a lawyer. He should therefore take up this concern with his lawyer. If he does not have a lawyer then he or his family should hire one or get him an appointd one if he qualifies.See question
I thought trial started right after jury selection. This gives the jury ample time to research the defendant and find articles pertaining to charge. I know they are not supposed to do stuff like that but its a possibility.
This is very unusual and creates serious problems for both sides. I have never heard of such delay. There are obviouslly unusual circumstances involved with your case that have caused this to occur. Since you have a lawyer it would be best for you to find out from him or her why this situation exists.See question
There was an incident at my former place of employment and it ended with me signing a paper stating that I will repay the amount no cops were involved at the time of the incident. Last week, i received a letter from the law firm. I read on severa...
You said "repay". This could infer that you may have stolen money. Or it could just be a civil matter. No amount of forums or Avvo answers are going adequately address your problem. There are too many variables. You need to talk to or possibly hire a lawyer to handle this. Most criminal lawyers with experience have handled this situation before. A lawyer can possibly negotiate with the employer's lawyer and get better information than you as to whether a criminal case can be brought against you whether you pay restitution or not.See question
prob. officer told me that he was gonna let my probation expire. it was up to me if i finished 42 hrs of cs and payed unpayed court cost. he did not take out a warrant prior to it expiring. so i have been told once it expires there is nothing he n...
I suggest calling or meeting wit the probation officer and asking the probation officer to write a letter stating that your probation has expired. If the answer you get is no, you then must decide whether it is worth the effort to raise this issue with the very same judge who's sentence you violated.See question


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January 11, 2006
TONYA R. DAKARI, PLAINTIFF,v.CUTLER DAWSON, NAVY FEDERAL CREDIT UNION, DEFENDANTS.
DECISION and ORDER
Presently before the Court is a complaint filed by pro se plaintiff Tonya R. Dakari.*fn1 This action, which was originally filed in the United State District Court for the Eastern District of Virginia, was transferred to this District by Order of District Judge Claude M. Hilton. Dkt. No. 3. Plaintiff has not paid any fee relating to this action, and seeks leave to proceed in forma pauperis. Dkt. No. 2.
In her complaint, plaintiff asserts claims arising out the ownership of an automobile which plaintiff appears to have financed through defendant Navy Federal Credit Union (the "Credit Union").*fn2
Plaintiff claims that the Credit Union has improperly refused to release the certificate of title for the vehicle. Dkt. No. 1 at 1-3.
By way of background, plaintiff was the debtor in a Chapter 13 bankruptcy proceeding in the Northern District. See Dakari v. Navy Federal Credit Union, 5:04-CV-0452 (NAM) (Appeal from Bankruptcy Court). On September 29, 2003, plaintiff commenced an adversary proceeding against the Credit Union claiming that the certificate of title to the vehicle is in her son's name, and the Credit Union therefore did not have a perfected security interest in the vehicle. See id. at Dkt. No. 16 at 1-2 (Memorandum Decision and Order of District Judge Norman A. Mordue filed May 9, 2005). Plaintiff's Chapter 13 proceeding was dismissed by Bankruptcy Court on March 11, 2004 due to plaintiff's failure to comply with prior orders in that proceeding and, shortly thereafter, Bankruptcy Court dismissed the adversary proceeding. See id., Dkt. No. 16 at 2-3.
Plaintiff appealed the dismissal of the adversary proceeding to this Court. By Memorandum-Decision and Order filed May 9, 2005, Bankruptcy Court's dismissal of the adversary proceeding was affirmed. See id., Dkt. No. 16 at 4. Plaintiff's appeal of that decision was dismissed by the United States Court of Appeals for the Second Circuit. See id., Dkt. No. 21.
While the Bankruptcy Appeal was pending, plaintiff commenced another action in this Court by which she claimed that the Credit Union had engaged in debt collection practices in violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. Dakari v. Navy Federal Credit Union, 3:04-CV-0984 (TJM/DEP). By Order of Senior District Judge Thomas J. McAvoy filed October 14, 2004, the action was dismissed for failure to state a claim because the Credit Union was not a "debt collector" as defined in the statute. Id., Dkt. No. 3.
This action followed. As noted, plaintiff filed the complaint in the Eastern District of Virginia, where the Credit Union is located, and where the security agreement appears to have been made. Dkt. No. 1. Plaintiff alleges that while she signed the security agreement, the Credit Union did not obtain a perfected security interest in the vehicle because the certificate of title was issued in her son's name.
Dkt. No. 1 at 2.*fn3
In this case, where plaintiff seeks to proceed in forma pauperis, the Court must determine whether plaintiff has demonstrated sufficient economic need and must also consider the sufficiency of the complaint in light of 28 U.S.C. § 1915(e).*fn4 Section 1915(e) directs that when a plaintiff seeks to proceed in forma pauperis, the Court:
(2) [S]hall dismiss the case at any time if the Court determines that -***
(B) the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the Court's responsibility to determine that a complaint may properly be maintained in the District before it may permit the plaintiff to proceed with his or her action in forma pauperis. Id.
The subject matter jurisdiction of the federal district courts is limited and is set forth generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal jurisdiction is available only when a federal question is presented or when the parties are of diverse citizenship and the amount in question exceeds $75,000. It is well established that the Court may raise the question of jurisdiction sua sponte, and that where jurisdiction is lacking, "dismissal is mandatory." United Food & Commercial Workers Union, Local 919, AFL-CIO v. Centermark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994); see also Fed. R. Civ. P. 12(h)(3).
Plaintiff's complaint seeks to invoke the Court's diversity jurisdiction. Dkt. No. 1 at 1. Diversity jurisdiction exists only if there is diversity of citizenship between the parties and the matter in controversy exceeds the sum or value of $75,000. See 28 U.S.C. §1332(a). "The Supreme Court has held that the party asserting diversity jurisdiction in federal court has the burden of establishing the existence of the jurisdictional amount in controversy." Lupo v. Human Affairs International, Inc., 28 F.3d 269, 273 (2d Cir. 1994).
As noted, plaintiff identifies the Credit Union as an entity having its principal place of business in Virginia and it therefore appears that the parties are citizens of different states. However, the unsigned complaint is devoid of any facts which would establish that the amount in controversy exceeds the sum or value of $75,000. Accordingly, the court finds that it does not have diversity jurisdiction over this action.
In light of plaintiff's pro se status, the Court has also considered whether the complaint states a claim for relief pursuant to the Court's federal question jurisdiction which may be brought in this court, and concludes that it does not.
As noted, plaintiff's bankruptcy proceeding has been closed since November 10, 2005, when the Second Circuit issued its mandate dismissing plaintiff's appeal. Dkt. No. 21. The fact that the bankruptcy action was pending in this district does not confer jurisdiction over the claims asserted in this complaint. The Court further notes that while the complaint contains conclusory allegations that the defendants' alleged refusal to release the certificate of title violates her constitutional rights (see Dkt. No. 1 at 1, 3-4), those assertions are not sufficient to state a claim upon which relief may be granted by this Court. The validity of the Credit Union's security interest is, as plaintiff herself recognizes, a matter of state not federal law.
In light of the foregoing, this Court finds that it lacks subject matter jurisdiction of plaintiff's claims. This action is hereby dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
WHEREFORE, it is hereby
ORDERED, that the complaint is dismissed pursuant to 28 U.S.C. § 1915(e), and it is further ORDERED, that in light of the dismissal of this action, plaintiff's in forma pauperis application (Dkt. No. 2) is denied as moot, and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on plaintiff by regular mail.
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