UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

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1 Case :-cv-00-sba Document Filed 0// Page of 0 MATTHEW D. ZINN (State Bar No. ) WINTER KING (State Bar No. ) AARON M. STANTON (State Bar No. 0) SHUTE, MIHALY & WEINBERGER LLP Hayes Street San Francisco, California 0 Telephone: () - Facsimile: () - Zinn@smwlaw.com King@smwlaw.com Stanton@smwlaw. com Attorneys for Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 0 CITIZENS FOR FREE SPEECH, LLC, and MICHAEL SHAW, v. Plaintiffs, COUNTY OF ALAMEDA; ALAMEDA COUNTY EAST COUNTY BOARD OF ZONING ADJUSTMENTS; FRANK J. IMHOFF, SCOTT BEYER, and MATTHEW B. FORD, in their official capacity as members of the Alameda County East County Board of Zoning Adjustments, Defendants. Case No. :-cv-00-sba Defendants Opposition to Motion for Preliminary Injunction Date: April, 0 Time: :00 p.m. The Hon. Saundra Brown Armstrong CASE NO. :-cv-00-sba

2 Case :-cv-00-sba Document Filed 0// Page of 0 0 TABLE OF CONTENTS Page INTRODUCTION... STATEMENT OF FACTS... I. Plaintiffs have maintained illegal billboards on their property for years... II. III. IV. At the end of their prior lawsuit, Plaintiffs conceded they had no further challenge to the County s current sign regulations... Consistent with the prior judgment, the County now seeks to enforce its constitutional sign regulations against Plaintiffs illegal signs... Plaintiffs have again filed suit and asked the Court to enjoin the County s administrative abatement process... STANDARD OF REVIEW... ARGUMENT... I. Plaintiffs complaint and motion are inconsistent with the prior judgment: they ask this Court for the same injunction that the Court rejected in the prior action... II. III. Plaintiffs cannot succeed on the merits because the prior judgment does not preclude the County from enforcing its sign regulations. Rather, it precludes Plaintiffs claims in this lawsuit... A. The prior judgment does not bar the County from conducting administrative proceedings to enforce its sign regulations.... The County s administrative enforcement proceedings are not barred by the Federal Rules of Civil Procedure.... Plaintiffs claim preclusion argument adds nothing to their flawed Rule (a) argument Plaintiffs All Writs Act argument is similarly meritless... B. Plaintiffs complaint and motion are barred by claim and issue preclusion... C. The Court cannot enjoin the County s administrative proceeding based on the prior judgment because Plaintiffs must exhaust their administrative remedies... The remaining Winter factors all weigh against enjoining the County s enforcement proceedings... A. Plaintiffs will suffer no irreparable harm... B. The public interest and balance of harms weigh in the County s favor... i CASE NO. :-cv-00-sba

3 Case :-cv-00-sba Document Filed 0// Page of CONCLUSION 0 0 ii CASE NO. :-cv-00-sba

4 Case :-cv-00-sba Document Filed 0// Page of 0 0 FEDERAL CASES TABLE OF AUTHORITIES Page Alliance for the Wild Rockies v. Cottrell, F.d (th Cir. 0)... Avitia u. Metro. Club, F.d (th Cir. )... City of Oakland v. Pub. Emps. Ret. Sys., Cal. App. th (00)... FTC v. World Wide Factors, Ltd., F.d (th Cir. )... Hall v. FERC, F.d (th Cir. )...0 Hayes u. Ridge, F. Supp. (E.D. Pa. )... Int l Bhd. of Elec. Workers, AFL-CIO v. G.P. Thompson Elec., Inc., F.d (th Cir. )... Jones v. Ford Motor Credit Co., F.d 0 (d Cir. 00)... Keith v. Volpe, F.d (th Cir. )..., In re Lazar, F.d (th Cir. 00)... Lesnik v. Pub. Indus. Corp., F.d (d Cir. )... Metromedia Broadcasting Corp. u. MGM/ UA Ent. Co., F. Supp. (C.D. Cal. )... Myers u. Bethlehem Shipbuilding Corp., 0 U.S. ()... N. Nat. Gas Co. v. Trans Pac. Oil Corp., F.d (0th Cir. 00)... iii CASE NO. :-cv-00-sba

5 Case :-cv-00-sba Document Filed 0// Page of 0 0 Northwest Adm rs, Inc. v. Dart Entities, Inc., No. CV - ABC (JEMx) 0 U.S. Dist. LEXIS (C.D. Cal. Sept., 0)... Oakland Tribune, Inc. v. Chronicle Pub. Co., F.d (th Cir. )... Porter v. Nussle, U.S. (00)... Reyn s Pasta Bella, LLC u. Visa USA, Inc., F.d (th Cir. 00)... S. Constr. Co. v. Pickard, U.S. ()..., SEC v. G.C. George Secur., Inc., F.d (th Cir. )... SEC v. Otis Co., U.S. ()... SMA Life Assurance Co. u. Sanchez-Pica, 0 F.d (st Cir. )... Smith v. FTC, F. Supp. 0 (D. Del. )... Tahoe-Sierra Pres. Council, Inc. u. Tahoe Reg l Planning Agency, F.d 0 (th Cir. 00)..., Taylor v. Sturgell, U.S. 0 (00)... Top Choice Distribs. v. USPS, No. -CV-0E(H), U.S. Dist. LEXIS (W.D.N.Y. Dec., )... United States v. Norton, 0 F. Supp. (D. Colo. )... Ventura County Christian High Sch. v. City of San Buenaventura, F. Supp. d (C.D. Cal. 00)... Walsh v. Int l Longshoremen s Ass n, 0 F.d (st Cir. 0)... Winter v. Natural Res. Def. Council, U.S., (00)... iv CASE NO. :-cv-00-sba

6 Case :-cv-00-sba Document Filed 0// Page of 0 0 STATE CASES Hi-Desert Med. Ctr. v. Douglas, Cal. App. th (0)...0 FEDERAL STATUTES U.S.C. 0(b)... U.S.C.... STATE STATUTES Cal. Civ. Proc. Code... Cal. Civ. Proc. Code... FEDERAL RULES Fed. R. Civ. P. (a)...,,, 0 TREATISES Charles Alan Wright et al., Federal Practice & Procedure: Civil d (00)... Charles Alan Wright et al., Federal Practice & Procedure: Jurisdiction d (0)... 0 B Charles Alan Wright et al., Federal Practice & Procedure: Jurisdiction d (00)... 0 v CASE NO. :-cv-00-sba

7 Case :-cv-00-sba Document Filed 0// Page of 0 0 INTRODUCTION For three years, Plaintiff Citizens for Free Speech [] has argued that it is entitled to display the billboards that it erected in Alameda County without County approval. Although Citizens maintained its signs during the pendency of this litigation, this litigation is all but completed, and Citizens has won neither injunctive relief entitling it to display the signs, nor compensatory damages. Judge Charles R. Breyer, granting Plaintiffs $ in nominal damages and greatly reduced attorneys fees in Plaintiffs prior lawsuit against Defendant Alameda County. After those three years of litigation over the constitutionality of its sign regulations, the County has initiated an administrative proceeding to enforce those regulations against three signs maintained by Plaintiffs signs that Plaintiffs have openly admitted are illegal. In asking this Court to enjoin the County s enforcement proceeding, Plaintiffs contend it is foreclosed by the prior litigation despite the fact that Judge Breyer refused to issue that very same injunction at the conclusion of the prior litigation. He did so because, as Plaintiffs had admitted, the County s sign regulations were, and remain, constitutional. Plaintiffs sole theory in support of their requested preliminary injunction is that the County was obligated to prosecute its administrative enforcement action in federal court as a counterclaim to Plaintiffs constitutional challenge. As their motion papers reveal, there is no support for this theory in the case law. Indeed, if accepted, it would allow any party subject to a local government s code enforcement action to effectively remove that administrative proceeding to federal court. Plaintiffs have the grievance here exactly backwards: the only claims precluded by the prior litigation are Plaintiffs claims in this action, the very same claims they unsuccessfully litigated before. They were not entitled to an injunction then, and they are not entitled to one now. Citizens for Free Speech, LLC et al. v. County of Alameda, Case No. C-0, Dkt. 0 at (emphasis added). The relevant documents from that prior action are listed in the Request for Judicial Notice filed with this opposition and will be cited hereinafter as Prior Dkt. ###. CASE NO. :-cv-00-sba

8 Case :-cv-00-sba Document Filed 0// Page of 0 0 STATEMENT OF FACTS I. Plaintiffs have maintained illegal billboards on their property for years. For approximately four years, Plaintiffs have maintained several large, freeway-facing signs on Plaintiff Michael Shaw s property ( Property ) in Alameda County. Dkt., % 0. These signs are patently illegal under the County s sign regulations, as Plaintiffs readily admit. Dkt., H (alleging that [t]he display of Plaintiffs signs was not allowed under the Code ). They are inconsistent with the development plan governing the use of the Property, which permits the display of only a single sign announcing the vehicle storage business operated on the Property. Prior Dkt. 0, Ex. A. Plaintiffs never obtained County approval to erect the signs, as required by the County Code. Prior Dkt., OT -. And one of Plaintiffs signs now displays off-site commercial advertising, in violation of the County s sign regulations. Dkt. - at,. Plaintiffs do not dispute these facts in their complaint or moving papers. II. At the end of their prior lawsuit, Plaintiffs conceded they had no further challenge to the County s current sign regulations. In June 0, the County issued a Declaration of Public Nuisance Notice to Abate, informing Shaw that the signs on his Property violated sections..00 and..0 of the County Code. Prior Dkt. -, n -, Ex. C. In general, these sections prohibit any use of the Property that is inconsistent with the adopted land use and development plan for the Property ( Development Plan ). Defendants Request for Judicial Notice ( County RJN ), Ex.. The notice instructed Shaw to remove the signs or face abatement proceedings. Prior Dkt. -, ff -, Ex. C. On June, 0, before the County had even sent out the abatement notice, Plaintiffs sued the County in this Court, alleging that various provisions of the County Code violated the free speech and equal protection provisions of the federal and California constitutions. See generally Prior Dkt.. On September, 0, the Court issued a preliminary injunction forbidding the County from continuing its enforcement proceeding. Prior Dkt. 0. As the case unfolded, it became clear that Plaintiffs asserted both an as-applied challenge alleging the County could not, consistent with the First Amendment, apply its sign regulations to Plain- CASE NO. :-cv-00-sba

9 Case :-cv-00-sba Document Filed 0// Page of 0 0 tiffs signs and a facial, overbreadth challenge alleging that the County s sign regulations on their face violated the First Amendment and Equal Protection Clause. Prior Dkt. at -. This Court rejected Plaintiffs as-applied claim. As the Court noted, Prior Dkt. at, County Code section..0 provides that [a]ny use of land within the boundaries of a [Planned Development] district adopted in accordance with the provisions of this chapter shall conform to the approved land use and development plan. County RJN, Ex. I. Under Plaintiffs approved Development Plan, [t]he signage that could be built on the Parcel was limited to one non-electrical unlighted sign with maximum dimensions of two feet by twenty-four feet, and was required to be approved through Zoning approval. Prior Dkt. at - (citations omitted). According to the Court, Plaintiffs do not argue that the Signs are small enough to be acceptable under the Plan, or that Plaintiffs sought approval prior to building the signs. Plaintiffs do not contest any of the material facts regarding the substance of the Plan discussed above, nor do they argue that the County improperly applied Sections..00 and..0 to them. Id. As a result, the Court granted the County s summary judgment motion with respect to Plaintiffs as-applied claim. Id. at. The Court also rejected all but one of Plaintiffs facial challenges to the County Code, including all facial challenges brought under the First Amendment. Prior Dkts. at, 0. The only claim on which Plaintiffs prevailed was that County Code section..0(a) violated the Equal Protection Clause. This section permitted government officials to post notices regardless of size and location but offered no similar authorization for private parties. Prior Dkt. 0 at -. The Court held that section..0(a) was content-based and could not survive strict scrutiny. Id. at -. On October, 0, before the Court issued final judgment in the case, the County amended section..0(a) to allow any person not just government officials to place one unilluminated temporary sign, up to one square foot in area, on any parcel for up to nine Relevant County Code provisions are attached to the County s RJN as Exhibits and. CASE NO. :-cv-00-sba

10 Case :-cv-00-sba Document Filed 0// Page 0 of 0 0 ty days. Prior Dkt., Ex.. The Court subsequently held that this amendment cured any constitutional deficiency in the County sign regulations. Prior Dkt. 0 at -0. And Plaintiffs themselves then conceded that they had no further constitutional objections to the County s sign regulations. Prior Dkt. at ( Citizens does not challenge the current sign code ); id. ( the current sign code [is] not challenged in this case ). Because the County corrected the sole code provision that the Court found unconstitutional, the Court granted the County s motion to dissolve the preliminary injunction against enforcement of the sign regulations. Prior Dkt. ; see also Prior Dkt.. The Court then awarded Plaintiffs $ in nominal damages and $, in attorneys fees an 0% reduction from Plaintiffs request, which reflected their minimal success in the suit. Prior Dkt. 0 at,. The Court denied Plaintiffs repeated requests for a permanent injunction prohibiting the County from ever enforcing its regulations against Plaintiffs signs. See Prior Dkt. 0 at, ( The Court has not granted a permanent injunction, despite Citizens repeated requests. ); id. at ( Citizens did not receive a permanent injunction allowing it to maintain its signs. ). III. Consistent with the prior judgment, the County now seeks to enforce its constitutional sign regulations against Plaintiffs illegal signs. With its sign regulations acknowledged as constitutional by both the Court and Plaintiffs, the County once again began enforcement proceedings against Plaintiffs illegal signs. On September, 0, the County sent Shaw another Declaration of Public Nuisance Notice to Abate. Dkt. -. This notice reminded Plaintiffs that () their signs violate County Code section..0 because they are not permitted by the Development Plan for the Property and () the electronic billboard Plaintiffs erected during the prior litigation violates County Code section... Id.\ County RJN, Ex.. The County then scheduled a hearing before the Alameda County Board of Zoning Adjustments ( BZA ), the body with authority to review abatement notices. County RJN, Ex. (Section..00). The County initially set the hearing for December, 0. Declaration of Matthew D. Zinn in Support of CASE NO. :-cv-00-sba

11 Case :-cv-00-sba Document Filed 0// Page of 0 0 ( Zinn Decl. ) %. However, to accommodate Plaintiffs counsel, the County continued the hearing for two months, until February, 0. Zinn Decl. H,. In late January, Plaintiffs counsel requested another continuance, and the County agreed to continue the hearing to February, 0 more than four months after the Notice of Abatement. Zinn Decl. %. The County stipulated that it would take no action to remove Plaintiffs signs until completion of any administrative appeal from the BZA s decision. Zinn Decl. H,, 0. IV. Plaintiffs have again filed suit and asked the Court to enjoin the County s administrative abatement process. Meanwhile, on February, 0, Plaintiffs filed a new complaint asking this Court to enjoin the BZA proceedings. Dkt.. Plaintiffs allege four claims: () the County has deprived Plaintiffs of their free speech rights by [r]equiring Plaintiffs to either acquiesce in the removal of the signs, or engage in an administrative proceeding which can result in the forcible removal of Plaintiffs [sic] signs without the approval of a judicial officer ; () the County has denied Plaintiffs due process by enforcing its Code against Plaintiffs in disregard of the preclusive effect of this Court s final order in the prior action; () the County Code deprives Plaintiffs of free speech rights secured by the First Amendment ; and () the County Code denies Plaintiffs equal protection. Dkt. at -. Plaintiffs fifth claim does not allege any legal violation but instead asserts the case is brought under U.S.C.. Id. at -. On March, 0, Plaintiffs moved to enjoin the County from holding the BZAhearing until the merits of Plaintiffs claims are resolved. Dkt.. The County agreed to postpone the BZA hearing until after this motion is heard. Zinn Decl. %. STANDARD OF REVIEW A preliminary injunction is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Winter v. Natural Res. Def. Council, U.S.,, (00). The movant must establish that it is likely to succeed on the merits, it is likely to suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in its favor, and the requested injunction is in the public interest. Id. at 0. A court may also grant an injunction if there are serious questions going to the merits and the bal CASE NO. :-cv-00-sba

12 Case :-cv-00-sba Document Filed 0// Page of 0 0 ance of hardships tips sharply in favor of the movant, provided the other two elements are also met. Alliance for the Wild Rockies v. Cottrell, F.d, (th Cir. 0). Under either standard, however, the moving party bears the burden of establishing all four elements. Id. Moreover, [w]hen a federal court enjoins state proceedings, at whatever level, it disrupts the delicate balance of power between the state and federal systems, and it should have a substantial justification for doing so. SMA Life Assurance Co. v. Sanchez-Pica, 0 F.d, (st Cir. ). Plaintiffs plainly fail to carry their burden here. ARGUMENT I. Plaintiffs complaint and motion are inconsistent with the prior judgment: they ask this Court for the same injunction that the Court rejected in the prior action. All of the prior-litigation doctrines asserted by Plaintiffs are designed to protect the repose of a final judgment from relitigation or collateral attack and to protect the litigants against the harassment of repetitive litigation. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg l Planning Agency, F.d 0,0 (th Cir. 00) (claim preclusion); S. Constr. Co. v. Pickard, U.S., 0 () (Rule (a)); Keith v. Volpe, F.d, 0 (th Cir. ) (All Writs Act). The County s administrative code enforcement proceeding does not interfere with any of those policies. It is this lawsuit, not the County s enforcement proceeding, that offends the finality of the prior judgment. It was clear to all in the prior litigation that the County would reinstate its enforcement action after judgment. Plaintiffs repeatedly asserted in filings and at hearings that, without a permanent injunction to prohibit enforcement, the County would restart its enforcement proceedings. See, e.g., Prior Dkt. 0 at (Plaintiffs argument that their request for injunctive relief is not moot because the County will seek to abate Citizens signs in the absence of an injunction and Citizens signs are still up and the County still wants to abate them ); Prior Dkt. at ( The County plainly states that the moment the injunction is dissolved, it will bring... enforcement action against Citizens. ); Prior Dkt. at ( the County has unequivocally declared that it wants the injunction lifted so it can enforce the sign code against Citizens ); id. at ( The County will seek to abate Citizens signs as soon as the in- CASE NO. :-cv-00-sba

13 Case :-cv-00-sba Document Filed 0// Page of 0 0 junction is lifted. ); id. at ( the County imminently threatens to enforce [the sign code] against Citizens as soon as the injunction is lifted ); see also Prior Dkt. at - (Plaintiffs counsel s argument that without a permanent injunction, we are probably going to be back here 0 more times, because there is going to be an enforcement action ); id. at ( There is just the imminent threat of enforcement because they said they would do it. ). Indeed, the County confirmed that nothing stood in the way of enforcing its sign regulations against Plaintiffs and that it would likely do so. Prior Dkt. at -; Prior Dkt. at -; see also Prior Dkt. 0 at ( [T]he County stated at the motion hearing that it is considering the removal of Citizens signs and that the dissolution of the preliminary injunction frees [it] up to take such action. ). Yet Plaintiffs never argued that the expected enforcement proceeding would be barred by the simple fact of the judgment or the County s failure to file a counterclaim under Rule (a). To the contrary, they argued strenuously the Court must issue a permanent injunction to prevent that enforcement. Prior Dkts. 0, at, at, -, at -. The Court refused that relief and dissolved the preliminary injunction. Prior Dkt.. What is inconsistent with the repose of the prior judgment is Plaintiffs repetitive lawsuit. The prior action conclusively resolved Plaintiffs constitutional challenges to the County s sign regulations and their application to Plaintiffs illegal signs. In fact, at the end of the prior action, Plaintiffs conceded that they had no further constitutional objections to the County s sign regulations. Prior Dkt. at. Yet Plaintiffs here reassert the challenges they brought in the prior action. Moreover, they ask this Court to enjoin the County s enforcement proceeding the very same injunction that Plaintiffs sought, and the Court rejected, in the prior action. The Court should refuse to issue any such injunction. CASE NO. :-cv-00-sba

14 Case :-cv-00-sba Document Filed 0// Page of 0 0 II. Plaintiffs cannot succeed on the merits because the prior judgment does not preclude the County from enforcing its sign regulations. Rather, it precludes Plaintiffs claims in this lawsuit. A. The prior judgment does not bar the County from conducting administrative proceedings to enforce its sign regulations. Plaintiffs assert several theories to support their claim that the County s enforcement is precluded by the prior action. The common failings of these theories are that () they would effectively grant Plaintiffs the very same injunction against enforcement of the County s sign regulations that this Court expressly rejected in the prior action, and () they assume that the County was obligated to enforce those local regulations in federal court.. The County s administrative enforcement proceedings are not barred by the Federal Rules of Civil Procedure. Plaintiffs principally argue that they are likely to succeed on their claims because the County did not file a counterclaim alleging that Plaintiffs signs were in violation of the Code and is therefore barred from doing so now by Federal Rule of Civil Procedure (a). Dkt. at. This argument suffers from several fundamental flaws. First, on its face, Rule (a) does not prohibit the County from prosecuting its own administrative abatement proceedings to remedy code violations. Rule (a) applies when a party files a suit in federal court that states a claim that should have been asserted in an earlier federal suit. Plaintiffs fail to cite a single case in which Rule (a) has precluded a subsequent claim filed in state court, let alone a case holding that Rule (a) can preclude a subsequent state or local administrative proceeding. By initiating an administrative enforcement action, the County has not filed a claim at all. See, e.g., City of Oakland v. Pub. Emps. Ret. Sys., Cal. App. th, (00) ( An administrative proceeding is neither a civil action... nor a special proceeding of a civil nature.... ). Thus, Rule (a) is simply inapplicable. Beyond the fact that none of Plaintiffs cases involves an administrative proceeding, many of Plaintiffs cases do not even address preclusion. See, e.g., In re Lazar, F.d, California law distinguishes between civil actions and special proceedings. Cal. Civ. Proc. Code,. CASE NO. :-cv-00-sba

15 Case :-cv-00-sba Document Filed 0// Page of 0 0 (th Cir. 00) (discussing waiver of sovereign immunity, not preclusion); Lesnik u. Pub. Indus. Corp., F.d,, (d Cir. ) (no discussion of preclusion), superseded by statute as recognized in Jones v. Ford Motor Credit Co., F.d 0 (d Cir. 00). Others are irrelevant because the court determined that Rule (a) did not apply. See, e.g., S. Constr. Co. at 0. Moreover, applying Rule (a) to bar the County s administrative proceeding would lead to the untenable consequence of forcing local governments to conduct nuisance abatement in federal court. Any landowner could bypass the local zoning board by rushing to federal court at the first hint of enforcement. But the Federal Rules of Civil Procedure were not intended to create a federal forum for every local code enforcement matter. The Rules Enabling Act dictates that the federal rules will not have such a sweeping impact. U.S.C. 0(b) ( Such rules shall not abridge, enlarge or modify any substantive right. ); see also Charles Alan Wright et ah, Federal Practice & Procedure: Civil d, at (00). Plaintiffs ask that the Court effectively force the County to pursue its enforcement action in the violator s chosen federal forum. Not only does this deny the County its choice of forum and frustrate the administrative process described in the County Code, see Smith v. FTC, F. Supp. 0,0 (D. Del. ) (declining to bar an enforcement proceeding where doing so would eviscerate an enforcement scheme); see also County RJN, Ex., it also denies the BZA the ability to make routine decisions about the character of the County, placing these decisions instead in the hands of a federal judge. Given these preposterous consequences, Rule cannot apply. Cf. Int l Bhd. of Elec. Workers, AFL-CIO v. G.P. Thompson Elec., Inc., F.d, (th Cir. ) (declining to bar the arbitration of a claim that could have been raised as a counterclaim in light of policy interests). Finally, res judicata bars Plaintiffs Rule (a) theory. Plaintiffs could have, but failed to, assert this theory in the prior action. Rule (a) can be, and often is, asserted in the proceeding in which the counterclaim was allegedly required to be filed. See Wright et ah, supra,, at. Yet Plaintiffs never argued that the Court should maintain the injunction CASE NO. :-cv-00-sba

16 Case :-cv-00-sba Document Filed 0// Page of 0 0 on the theory the County had failed to prosecute its enforcement proceeding as a counterclaim. Prior Dkt... Plaintiffs claim preclusion argument adds nothing to their flawed Rule (a) argument. Plaintiffs also repackage their compulsory counterclaim theory as claim preclusion, arguing that the County, as defendant in the prior action, should have brought a counterclaim asserting that Plaintiffs signs were in violation of the Code and should be abated. Dkt. at. This argument is not meaningfully different from their Rule (a) argument and suffers from the same flaws discussed above. Plaintiffs theory of defendant preclusion using claim preclusion to bar a defendant in a prior action from later asserting a previously unasserted claim against the prior plaintiff has little application beyond the operation of Rule (a). See Charles Alan Wright et ah, Federal Practice & Procedure: Jurisdiction d, at (0). Indeed, Plaintiffs fail to cite a single case in which a court held a prior defendant barred by claim preclusion from asserting a claim against the prior plaintiff, let alone a case applying the doctrine to bar a subsequent administrative enforcement proceeding. Plaintiffs sole support is a California case applying California law on preclusion in administrative proceedings: Hi-Desert Med. Ctr. v. Douglas, Cal. App. th (0). Hi- Desert is nothing like this case. There, the prior litigation was brought by private plaintiffs who then sought a new remedy for the same claim by bringing a later administrative action, which both the agency and the court held was barred by res judicata. Id. at 0, -. That unremarkable result does not support Plaintiffs remarkable contention that a first lawsuit seeking to enjoin agency action can preclude the defendant agency from ever moving forward with its action after the plaintiff fails to obtain relief sought to stop it. Indeed, Plaintiffs claim preclusion theory suffers from the same absurdity as their Rule (a) theory: it would allow landowners to force local governments to conduct nuisance abatement in a federal judicial forum. See B Charles Alan Wright et ah, Federal Practice & Procedure: Jurisdiction d, at (00) {citinghall v. FERC, F.d,- (th Cir. )) ( [T]he sepa- 0 CASE NO. :-cv-00-sba

17 Case :-cv-00-sba Document Filed 0// Page of 0 0 rate statutory competencies of courts and agencies commonly mean that a judicial decision does not bar a later agency proceeding as a matter of claim preclusion. ). This is not a case in which an agency, despite having authority to pursue an administrative remedy, chose to first proceed against [the movant] in the district court, and then later pursued an administrative remedy. SEC v. G.C. George Secur., Inc., F.d, (th Cir. ) (emphasis added); see also United States v. Norton, 0 F. Supp., (D. Colo. ). The County has from the beginning sought to conduct its enforcement proceedings administratively, and Plaintiffs hailed the County into federal court in an attempt to stop those proceedings. Because the Court has rejected Plaintiffs requested injunction, the County may now proceed with enforcement its sign regulations.. Plaintiffs All Writs Act argument is similarly meritless. Finally, Plaintiffs argue that the Court has authority under the All Writs Act to enjoin administrative proceedings that interfere, derogate, or conflict with federal judgments, orders, or settlements. Dkt. at (quoting F.d at 0). The Act adds nothing to Plaintiffs Rule (a) and claim preclusion theories. G.C. George Securities, which Plaintiffs cite (Dkt. at -), merely stands for the proposition that district courts have authority under the Act to enjoin proceedings barred by prior litigation. F.d at -. The County does not dispute that proposition, but it does not identify which proceedings are barred by prior litigation. The Ninth Circuit in that case left that to be determined on remand. Id. at. As shown above, the prior judgment does not bar the County s enforcement proceeding. Moreover, Plaintiffs have not alleged a claim under the All Writs Act. See generally Dkt.. As a result, Plaintiffs All Writs Act argument provides no basis for granting a preliminary injunction. See, e.g., Northwest Adm rs, Inc. u. Dart Entities, Inc., No. CV - ABC (JEMx) 0 U.S. Dist. LEXIS, at *- (C.D. Cal. Sept., 0). B. Plaintiffs complaint and motion are barred by claim and issue preclusion. Plaintiffs cannot hope to prevail on the claims alleged in the complaint because they are barred by the claim- and issue-preclusive effect of the prior judgment. The parties agree CASE NO. :-cv-00-sba

18 Case :-cv-00-sba Document Filed 0// Page of 0 0 on the elements of claim preclusion. It is applicable whenever there is () an identity of claims, () a final judgment on the merits, and () privity between parties. Tahoe-Sierra, F.d at 0; see also Dkt. at. The doctrine is meant to protect parties against being harassed by repetitive actions. Tahoe-Sierra, F.d at 0. Plaintiffs lawsuit is a clear instance of such harassment. The final two factors are plainly satisfied here. The prior action was litigated to a final judgment that fully resolved the merits of Plaintiffs claims, and the two proceedings involve identical parties or their privies. The two suits also involve an identity of claims. Crucially, as Plaintiffs recognize, Dkt. at, the doctrine bars relitigation of all grounds of recovery that were asserted, or could have been asserted, in a previous action. Tahoe-Sierra, F.d at 0. Plaintiffs complaint alleges the very same constitutional claims they asserted in the prior action ^violations of the First Amendment and denial of equal protection. Compare Dkt. at (third and fourth causes of action) with Prior Dkt. at - (first and second causes of action). In the prior action, the Court granted the County summary judgment on all of Plaintiffs First Amendment claims. Prior Dkts., 0. The Court found that one provision of the County Code an authorization for government notices violated equal protection, Prior Dkt. 0 at, but the County quickly amended that provision, Prior Dkts.,. Plaintiffs third and fourth causes of action were thus fully and finally adjudicated in the prior action. Plaintiffs first cause of action alleging that the County s code enforcement procedure violates the First Amendment could have and should have been alleged in the prior action; Plaintiffs point to nothing in the County s code enforcement rules that has changed between the two actions. Because, as Plaintiffs acknowledge (Dkt. at ), claim preclusion bars claims that could have been asserted, but were not, in the prior action, the first cause of action is barred as well. Only Plaintiffs second cause of action for denial of due process is new and could not have been brought in the prior action because it alleges that the County s enforcement action is precluded by the prior judgment. Dkt., OT -0. However, even assuming that due pro CASE NO. :-cv-00-sba

19 Case :-cv-00-sba Document Filed 0// Page of 0 0 cess is a proper vehicle for asserting Plaintiffs theories of preclusion, all of those theories are meritless. See supra Section II.A. Moreover, Plaintiffs motion is squarely barred by issue preclusion. It bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment. Taylor v. Sturgell, U.S. 0, (00). A federal court judgment has issue preclusive effect in a later federal action if the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated, and like claim preclusion, there was a prior final judgment on the merits and the two cases involve identical parties or privies. Reyn s Pasta Bella, LLC v. Visa USA, Inc., F.d, (th Cir. 00). In the prior action, Plaintiffs sought, and the Court rejected, a continuing injunction to preclude the County from enforcing its sign regulations against Plaintiffs. See Prior Dkt. 0 at, -,. That is the very same issue presented by Plaintiffs motion. Courts have given issue-preclusive effect even to denial of preliminary injunctions. See Avitia u. Metro. Club, F.d, 0- (th Cir. ); Walsh v. Int l Longshoremen s Ass n, 0 F.d, - (st Cir. 0); Hayes v. Ridge, F. Supp., (E.D. Pa. ). This Court s prior denial of a permanent injunction must be given the same effect. C. The Court cannot enjoin the County s administrative proceeding based on the prior judgment because Plaintiffs must exhaust their administrative remedies. The Supreme Court has often reiterated the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Myers v. Bethlehem Shipbuilding Corp., 0 U.S., 0- (). Plaintiffs obviously have not exhausted their administrative remedies here. On the contrary, they attempt to foreclose the entirety of the County s administrative process, which calls for a hearing before the BZA and allows an appeal to the Board of Supervisors. County RJN, Ex. (County Code..00,..00). In those proceedings, the landowner may present all relevant evidence, objections or protests, id...00, including their preclusion theories. CASE NO. :-cv-00-sba

20 Case :-cv-00-sba Document Filed 0// Page 0 of 0 0 Here, Plaintiffs sole basis for enjoining the County proceeding is the alleged preclusive effect of the prior judgment. Dkt. at -. But a majority of the Courts of Appeals have held that enjoining administrative proceedings is improper under those circumstances because the plaintiff must exhaust its administrative remedies by presenting its preclusion arguments to the agency. SeeN. Nat. Gas Co. v. Trans Pac. Oil Corp., F.d, (0th Cir. 00) (applying SEC v. Otis Co., U.S. () (per curiam), and collecting cases). This principle provides an independent basis for denying the injunction. III. The remaining Winter factors all weigh against enjoining the County s enforcement proceedings. A. Plaintiffs will suffer no irreparable harm. Plaintiffs have failed to demonstrate that they will suffer irreparable harm if the County conducts the code enforcement hearing that Plaintiffs seek to enjoin. Dkt. at. While Plaintiffs assert that this hearing would lead immediately to the removal of their signs (Dkt. at ), the County has agreed not to take any action to remove Plaintiffs illegal signs until the administrative process has concluded and the time to challenge the County s administrative decision in court has run. Zinn Deck H,, 0. Moreover, the costs of engaging in administrative actions, arbitration proceedings and other forms of litigation cannot constitute irreparable harm. Top Choice Distribs. v. USPS, No. -CV-0E(H), U.S. Dist. LEX IS, at * (W.D.N.Y. Dec., ) (citing cases). Thus, proceeding with this administrative process will not cause Plaintiffs any irreparable harm. Further undermining Plaintiffs request for immediate injunctive relief, Plaintiffs waited more than four months until just days before the scheduled hearing to file their complaint. See Dkt. - (Notice to Abate sent September, 0); Dkt. (Complaint filed February, 0); Dkt. (Preliminary Injunction Motion filed March, 0); see also Zinn Deck OT -. This delay implies a lack of urgency and irreparable harm, and thus weighs In the prior action, Plaintiffs could obtain a preliminary injunction because exhaustion of administrative remedies is not required for the claims that formed the basis for the injunction. See Porter v. Nussle, U.S., (00). CASE NO. :-cv-00-sba

21 Case :-cv-00-sba Document Filed 0// Page of 0 0 against granting a preliminary injunction here. Oakland Tribune, Inc. u. Chronicle Pub. Co., Q F.d, (th Cir. ); see also Metromedia Broadcasting Corp. u. MGMlUA Ent. Co., F. Supp., (C.D. Cal. ) (denying motion for preliminary injunction where plaintiff delayed four months in seeking injunction). B. The public interest and balance of harms weigh in the County s favor. There is a strong public interest in allowing the County to move ahead with enforcement proceedings to ensure compliance with its sign regulations. [W]hen a district court balances the hardships of the public interest against a private interest, the public interest should receive greater weight. FTC v. World Wide Factors, Ltd., F.d, (th Cir. ). Here, Plaintiffs did not obtain any required permits before constructing their signs (Prior Dkt., % ), and thus the County was never able to review or regulate them according to the County s sign regulations. Plaintiffs freely admit that those signs are illegal. Dkt., %. Ensuring that development is consistent with local ordinances outweighs any interest Plaintiffs have in avoiding an administrative hearing. See Ventura County Christian High Sch. u. City of San Buenaventura, F. Supp. d, (C.D. Cal. 00) (denying preliminary injunction and finding strong public policy in favor of allowing city to enforce its zoning code against unpermitted structures). And there is no public interest in further constitutional review of the County s sign regulations: Plaintiffs have already had ample opportunity to air their constitutional objections to those regulations in the three years of prior litigation. CONCLUSION For these reasons, the Court should deny Plaintiffs motion for preliminary injunction. DATED: March, 0 SHUTE, MIHALY & WEINBERGER LLP By: /s/ MATTHEW D. ZINN WINTER KING AARON M. STANTON Attorneys for Defendants CASE NO. :-cv-00-sba