DENNIS BALLEN; NICE TIE INC., a Washington corporation dba Blazing Bagels v. City of Redmond, a municipal corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 DENNIS BALLEN; NICE TIE INC., a
Washington corporation dba
Blazing Bagels,
Plaintiffs-Appellees,
v.
No. 04-35606 CITY OF REDMOND, a municipal
corporation; CITY OF REDMOND D.C. No.
 PLANNING AND COMMUNITY CV-03-02580-MJP
DEVELOPMENT DEPARTMENT;
ROBERTA LEWANDOWSKI, in her
official capacity as Planning
Director of the City of Redmond
Dept of Planning and Community
Development,
Defendants-Appellants. 
11437

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 DENNIS BALLEN; NICE TIE INC., a
Washington corporation dba
Blazing Bagels,
Plaintiffs-Appellees,
v.
No. 04-35758 CITY OF REDMOND, a municipal
corporation; CITY OF REDMOND D.C. No.
 PLANNING AND COMMUNITY CV-03-02580-MJP
DEVELOPMENT DEPARTMENT; OPINION
ROBERTA LEWANDOWSKI, in her
official capacity as Planning
Director of the City of Redmond
Dept of Planning and Community
Development,
Defendants-Appellants. 
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
June 6, 2006—Seattle, Washington
Filed September 15, 2006
Before: Richard C. Tallman and Jay S. Bybee,
Circuit Judges, and Marilyn L. Huff,* District Judge.
Opinion by Judge Tallman
*The Honorable Marilyn L. Huff, United States District Judge for the
Southern District of California, sitting by designation.
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COUNSEL
J. Zachary Lell, Seattle, Washington, for the defendants-
appellants.
Steven M. Simpson, Arlington, Virginia, for the plaintiffs-
appellees.
OPINION
TALLMAN, Circuit Judge:
This First Amendment commercial speech case arises from
a dispute between Blazing Bagels’ use of outdoor advertising
and the City of Redmond’s commercial signage ordinance.
The City of Redmond, Washington, and its Department of
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Planning and Community Development (collectively “Defen-
dants” or “the City” or “Redmond”) appeal the district court’s
orders granting Plaintiff Dennis Ballen summary judgment
and attorneys’ fees. Appellees Ballen and his business, Nice
Tie, Inc., d/b/a Blazing Bagels (collectively “Ballen” or
“Plaintiffs”), challenge the City’s sign ordinance
(“Ordinance”), REDMOND COMMUNITY DEVELOPMENT GUIDE
(“RCDG”) 20D.160.10-090, prohibiting all portable signs,
with ten exceptions, see RCDG 20D.160.10-060, arguing,
inter alia, that the Ordinance does not directly advance the
government’s interest and, in the alternative, reaches further
than necessary to accomplish the government’s interest. We
must decide whether the Ordinance prohibiting the use of por-
table signs is a permissible restriction on commercial speech.
The district court ruled the City’s Ordinance invalid and we
affirm. We also uphold the fee award.
I
On June 17, 1997, to promote the City’s dual goals of traf-
fic safety and community aesthetics, see RCDG 20D.160.10-
010, the City Council passed the Ordinance banning the dis-
play of most portable and offsite signs. RCDG 20D.160.10-
090. The challenged provision of the Ordinance reads:
Portable Signs. All portable signs except real estate
signs and other portable signs specifically allowed
by RCDG 20D.160.10-060, Signs and Street Graph-
ics, are prohibited. This prohibition includes, but is
not limited to, portable readerboards, signs on trail-
ers, sandwich boards, except as allowed by RCDG
20D.160.10-060(10), Signs and Street Graphics:
Temporary Uses, and sidewalk signs.
RCDG 20D.160.10-090.
Ten categories of signage are exempt from this general pro-
hibition: (1) banners on the Redmond Way railroad overpass,
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(2) construction signs, (3) celebration displays, (4) banner dis-
plays in the city center neighborhood, (5) major land use
action notices, (6) political signs, (7) real estate signs, (8)
temporary window signs, (9) signs on kiosks, and (10) tempo-
rary uses and secondary uses of schools, churches, or commu-
nity buildings. RCDG 20D.160.10-060.
On most weekday mornings from mid-November 2002
through January 2003, and again from mid-April 2003 to mid-
June 2003, Ballen, owner of Blazing Bagels, hired an
employee to stand on the sidewalk wearing a sign that read:
“Fresh Bagels - Now Open.” The employee directed the atten-
tion of passing motorists to Ballen’s business premises and
informed passing motorists of Ballen’s available retail prod-
ucts.
But the City did not like the taste of Blazing Bagels’ adver-
tisement. On June 18, 2003, the City transmitted a letter to
Ballen notifying him that he was in violation of the law and
warning him that continued noncompliance would result in
the initiation of code enforcement proceedings. The letter
ordered Ballen to cease and desist using a portable sign to
advertise his business.
Instead of baking up a more palatable method of advertis-
ing, Ballen produced a Complaint filed in the King County
Superior Court on July 22, 2003, under 42 U.S.C. § 1983 and
Washington’s Uniform Declaratory Judgments Act. The City
removed the case to the United States District Court for the
Western District of Washington.
On April 20, 2004, the parties submitted Cross-Motions for
Summary Judgment. On June 15, 2004, the district court
entered a final Order and Judgment Granting Plaintiffs’
Motion and Denying the City’s Motion. This timely appeal
followed.
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Ballen subsequently moved for an award of attorneys’ fees
and costs, and declaratory relief and nominal damages pursu-
ant to 42 U.S.C. § 1988. Over the City’s opposition to the fee
total requested by Ballen, the district court granted Ballen’s
Motion in full and awarded fees and costs in the amount of
$165,508. Another timely appeal followed.1
II
A grant of summary judgment is reviewed de novo. Sierra
Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir. 1995). We must
“determine, viewing the evidence in the light most favorable
to the nonmoving party, whether there are any genuine issues
of material fact and whether the district court correctly
applied substantive law.” United States v. City of Tacoma,
332 F.3d 574, 578 (9th Cir. 2003). All reasonable inferences
supported by the evidence must be drawn in the nonmoving
party’s favor. Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002). Both parties agree that this case
should be decided as a matter of law on summary judgment
as there are no genuine issues of material fact in dispute.
III
[1] On December 6, 2005, the City passed a new sign ordi-
nance that rescinded the ban that was the basis of Ballen’s
Complaint. Both parties agree, however, that this case contin-
ues to present a live controversy because Ballen seeks nomi-
nal damages in his Complaint, and his claim for damages and
attorneys’ fees is not mooted by the new ordinance. See Bern-
hardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir.
2002).
Moreover, the City has threatened to re-enact the old Ordi-
nance if it receives a favorable outcome on appeal. The City
conceded in its notice to us and at oral argument that its new
1The two appeals have been consolidated in this case.
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ordinance was adopted only as an interim regulation in
response to the district court’s summary judgment ruling.
Thus, this case is not moot. See Jacobus v. Alaska, 338 F.3d
1095, 1102-04 (9th Cir. 2003).
IV
[2] Commercial speech is defined as “expression related
solely to the economic interests of the speaker and its audi-
ence,” or as “speech proposing a commercial transaction.”
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n,
447 U.S. 557, 561-62 (1980). Both parties correctly concede
that Ballen’s advertising sign satisfies this definition and thus
contains pure commercial speech.
[3] Commercial speech enjoys a limited degree of First
Amendment protection. S.O.C., Inc. v. County of Clark, 152
F.3d 1136, 1142 (9th Cir. 1998). In Central Hudson, the
Supreme Court established a four-part test for reviewing gov-
ernmental restrictions on commercial speech. Specifically, the
validity of a restriction on commercial speech depends on the
following factors: (1) “whether the expression is protected by
the First Amendment,” which requires the speech to “concern
lawful activity and not be misleading”; (2) “whether the
asserted governmental interest is substantial”; (3) “whether
the regulation directly advances the governmental interest
asserted”; and (4) “whether [the regulation] is not more exten-
sive than is necessary to serve that interest.” Central Hudson,
447 U.S. at 566.
[4] Everyone agrees that the first two prongs are satisfied
in this case since the message conveyed by Ballen’s advertis-
ing sign concerns lawful activity and is not misleading, and
that the Ordinance’s dual goals of promoting vehicular and
pedestrian safety and preserving community aesthetics are
substantial governmental interests. See Metromedia, Inc. v.
City of San Diego, 453 U.S. 490, 507-08 (1981) (“Nor can
there be substantial doubt that the twin goals that the ordi-
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nance seeks to further—traffic safety and the appearance of
the city—are substantial governmental goals.”). The constitu-
tionality of Redmond’s Ordinance, therefore, turns on apply-
ing the third and fourth prongs of the Central Hudson test.
A
The third prong of the Central Hudson test is “whether the
regulation directly advances the governmental interest assert-
ed.” Central Hudson, 447 U.S. at 566. Because we think it is
clear that the Ordinance fails to satisfy Central Hudson’s
fourth prong, we do not reach the issue of whether the Ordi-
nance satisfies Central Hudson’s third prong.
B
[5] The fourth prong of the Central Hudson test is “whether
[the regulation] is not more extensive than is necessary to
serve that [governmental] interest.” Central Hudson, 447 U.S.
at 566. This requires that there be a reasonable fit between the
restriction and the goal, City of Cincinnati v. Discovery Net-
work, Inc., 507 U.S. 410, 416 (1993), and that the challenged
regulation include “a means narrowly tailored to achieve the
desired objective.” Bd. of Trustees of State Univ. of N.Y. v.
Fox, 492 U.S. 469, 480 (1989). “A regulation need not be
absolutely the least severe that will achieve the desired end,
but if there are numerous and obvious less-burdensome alter-
natives to the restriction on commercial speech, that is cer-
tainly a relevant consideration in determining whether the fit
between ends and means is reasonable.” Discovery Network,
507 U.S. at 417 n.13 (internal quotation marks and citation
omitted). The City has the burden of proving that the Ordi-
nance is narrowly tailored. Id. at 416.
In Discovery Network, the City of Cincinnati prohibited
distribution of commercial handbills displayed in news racks
on public property but permitted noncommercial handbills
displayed in news racks. Id. at 413 & nn.2-3. Cincinnati
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asserted that its ordinance was necessary to reduce the num-
ber of news racks in the city, which advanced its interests in
safety and aesthetics. Id. at 418. Although the Court accepted
Cincinnati’s position that reducing the number of news racks
increased safety and community aesthetics, the Court ruled
that the ordinance failed to satisfy Central Hudson’s fourth
prong because the prohibited news racks were no more harm-
ful than the permissible news racks. Id. at 424-25. As a result,
Cincinnati’s categorical ban on commercial news racks and its
allowance of noncommercial news racks created a distinction
that had “no relationship whatsoever to the particular interests
that the city has asserted.” Id. at 424. In addition, Cincinnati’s
adoption of a content-based ban rather than a valid time,
place, or manner restriction indicated that the city had “not
carefully calculated the costs and benefits associated with the
burden on speech imposed by its prohibition.” Id. at 417, 428-
30 (internal quotation marks omitted).
[6] Here, the governmental interests served by the Ordi-
nance include promoting vehicular and pedestrian safety and
preserving community aesthetics. The exceptions to the City’s
portable sign Ordinance are all content based. Different signs
are treated differently under the Ordinance based entirely on
a sign’s content. The City has failed to show how the
exempted signs reduce vehicular and pedestrian safety or
besmirch community aesthetics any less than the prohibited
signs. As in Discovery Network, the City’s use of a content-
based ban rather than a valid time, place, or manner restriction
indicates that the City has not carefully calculated the costs
and benefits associated with the burden on speech imposed by
its discriminatory, content-based prohibition.
[7] While some of the Ordinance’s content-based excep-
tions are reasonable—political signs are subject to strict scru-
tiny, construction signs promote traffic and pedestrian safety,
banner displays may enhance community aesthetics—others
compromise the City’s interests. More specifically, ubiquitous
real estate signs, which can turn an inviting sidewalk into an
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obstacle course challenging even the most dextrous hurdler,
are an even greater threat to vehicular and pedestrian safety
and community aesthetics than the presence of a single
employee holding an innocuous sign that reads: “Fresh Bagels
- Now Open.” Cf. Linmark Assocs., Inc. v. Willingboro, 431
U.S. 85 (1977) (holding that a municipal ordinance prohibit-
ing onsite “For Sale” and “Sold” signs is an invalid restriction
on commercial speech). Here, the City has protected outdoor
signage displayed by the powerful real estate industry from an
Ordinance that unfairly restricts the First Amendment rights
of, among others, a lone bagel shop owner. Additionally, tem-
porary window signs and signs on kiosks are no less a threat
to vehicular and pedestrian safety and community aesthetics
than the ambulant bagel advertisement.
[8] The availability of narrower alternatives that intrude
less on First Amendment rights is a factor to consider in
determining whether the Ordinance satisfies Central Hud-
son’s fourth prong. Discovery Network, 507 U.S. at 417 n.13.
In Discovery Network, the Court held that a city ordinance
prohibiting the distribution of commercial handbills displayed
in news racks on public property failed to satisfy Central
Hudson’s fourth prong because news racks, whether commer-
cial or noncommercial, were equally unattractive, and dis-
crimination against the small number of commercial news
racks was untenable when other alternatives (e.g., simply lim-
iting the total number of news racks) were available. Id. at
425-26. In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995),
the Court held that the Federal Alcohol Administration Act’s
(“FAAA”) restriction prohibiting beer labels from displaying
alcohol content failed to satisfy Central Hudson’s fourth
prong because the existence of alternative ways to prevent
strength wars among brewers, such as “directly limiting the
alcohol content of beers” or “prohibiting marketing efforts
emphasizing high alcohol strength,” indicated that the
FAAA’s ban was more extensive than necessary. Id. at 478,
490-91.
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[9] Here, less restrictive alternatives exist that could have
been used to advance the City’s interests. The City could
impose time, place, and manner restrictions on all commercial
signs. Likewise, if the City found that signs with live people
holding them are more distracting and therefore more hazard-
ous than a silent sandwich board, it could ban such signs alto-
gether.
Metromedia does not control this case. In Metromedia, the
Court held that a City of San Diego ordinance that prohibits
outdoor, offsite commercial billboards is a valid restriction of
commercial speech. 453 U.S. at 493 & n.1, 512. The Supreme
Court concluded that the ordinance directly advanced the
city’s interests in promoting traffic safety and preserving
community aesthetics and was narrowly tailored, and there-
fore survived Central Hudson’s four-part test. See id. at 510-
12.
Although the temptation to apply Metromedia as control-
ling precedent is strong at first glance, further analysis reveals
its applicability here to be misplaced. The Court in
Metromedia cautioned that “[e]ach method of communicating
ideas is a law unto itself and that law must reflect the differing
natures, values, abuses and dangers of each method.” Id. at
501 (internal quotation marks omitted). The Court then went
on to qualify that “[w]e deal here with the law of billboards.”
Id. This distinction is significant because billboards are fixed,
permanent structures that are more intrusive to community
aesthetics than portable sandwich boards. The externalities of
billboards include perdurable visual pollution that pervades a
substantial volume of our eyesight and grows into an unignor-
able part of our cultural landscape. Portable signs can be
removed at the close of business and standing advertisers can
take a seat when their feet are tired.
[10] Moreover, the ordinance upheld in Metromedia
banned all offsite commercial advertising, id. at 503, whereas
the Ordinance in this case exempted several categories of
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commercial advertising. In Metromedia the distinction that
was challenged and upheld was between onsite and offsite
billboards. It was a content-neutral distinction. The categori-
cal nature of the ordinance in Metromedia precludes its appli-
cation here. Instead, the inconsistent content-based nature
with which the Redmond Ordinance distinguishes its interests
and the availability of less restrictive alternatives to achieve
the City’s goals are fatal under Central Hudson’s fourth
prong.
[11] Thus, the Ordinance is not a reasonable fit between the
restriction and the goal, and the Ordinance therefore fails
Central Hudson’s fourth prong.
V
The City argues that the district court erred by excluding
two statements from Redmond Code Enforcement Officer
Deborah Farris (“Farris”). Evidentiary rulings made in the
context of summary judgment motions are reviewed for an
abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136,
141 (1997). The district court’s ruling can only be reversed if
it was both “manifestly erroneous and prejudicial.” Orr v.
Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).
[12] A trial court may only consider admissible evidence in
ruling on a motion for summary judgment. Id. Under Wash-
ington law, statements of ultimate facts, conclusions of fact,
and conclusory statements of fact are insufficient for sum-
mary judgment purposes. See Grimwood v. Univ. of Puget
Sound, Inc., 753 P.2d 517, 519 (Wash. 1988). Indeed, the
Washington Supreme Court has explained that “the emphasis
is upon facts to which the affiant could testify from personal
knowledge and which would be admissible in evidence.” Id.
Here, the declarant states:
4. The City’s ban on most portable and temporary
signs . . . significantly and materially advances the
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City’s interest in traffic safety and community aes-
thetics. The aggregate number of portable and tem-
porary signs displayed within the City’s jurisdiction
has severely decreased as a result of this prohibition.
5. The list of exemptions . . . has not materially
detracted from or otherwise undermined the effec-
tiveness of the City’s general prohibition on portable
signs. In my professional judgment, experience and
observation, the signs subject to the City’s ban repre-
sent both a significant amount and percentage — if
not an outright majority — of the total portable sign-
age that would otherwise exist in the Redmond com-
munity absent the prohibition.
There is no foundation of objective facts laid in these asser-
tions to support the legal conclusions offered and the district
court properly excluded these statements upon objection by
Ballen.
Moreover, excluding Officer Farris’s statements was not
prejudicial to the City since the statements do not cure, or
even address, the deficiencies of the Ordinance with respect
to Central Hudson’s fourth prong. Thus, the district court did
not abuse its discretion when it excluded Farris’s unsupported
legal conclusions.
VI
[13] The City argues that if the ban is unconstitutional
because of the numerous exemptions, then the exemptions
should be severed from the general ban on portable signs. But
severing the Ordinance would subject activity that is currently
authorized by the legislature to civil and criminal sanctions,
would impermissibly restrict speech that is protected by a
strict level of scrutiny, i.e., political speech, and would make
those protected by the exemptions—realtors, politicians, etc.
—indispensible parties to this proceeding. Thus, the district
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court properly refused to sever the allegedly unconstitutional
portion of the Ordinance from the rest of it.
VII
The City challenges the district court’s award of attorneys’
fees. An award of attorneys’ fees under 42 U.S.C. § 1988 is
reviewed for an abuse of discretion. Karam v. City of Bur-
bank, 352 F.3d 1188, 1192 (9th Cir. 2003). “An abuse of dis-
cretion occurs if the district court bases its decision on an
erroneous legal standard or on clearly erroneous findings of
fact.” United States v. Alisal Water Corp., 370 F.3d 915, 921
(9th Cir. 2004) (internal quotation marks omitted).
[14] “In any action or proceeding to enforce a provision of
section[ ] . . . 1983[,] . . . the court, in its discretion, may
allow the prevailing party, other than the United States, a rea-
sonable attorney’s fee as part of the costs . . . .” 42 U.S.C.
§ 1988. “The purpose of § 1988 is to ensure effective access
to the judicial process for persons with civil rights grievances.
Accordingly, a prevailing plaintiff should ordinarily recover
an attorney’s fee unless special circumstances would render
such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424,
429 (1983) (internal quotation marks and citations omitted).
Ballen is the prevailing party and is entitled to an award of
attorneys’ fees from the City pursuant to § 1988, and there are
no special circumstances in this case that would render an
award of attorneys’ fees unjust. Thus, the district court prop-
erly awarded attorneys’ fees to Ballen.
[15] Alternatively, the City argues that the district court’s
award of attorneys’ fees was excessive. In the Ninth Circuit,
the customary method of determining the permissible amount
of attorneys’ fees under § 1988 is the “lodestar” method.
Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.
1996). The lodestar method multiplies the number of hours
“the prevailing party reasonably expended on the litigation by
a reasonable hourly rate.” McGrath v. County of Nevada, 67
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F.3d 248, 252 (9th Cir. 1995). After making that computation,
courts then assess whether it is necessary to adjust the pre-
sumptively reasonable lodestar figure on the basis of twelve
factors. Id. at 252 & n.4; Cunningham v. County of Los Ange-
les, 879 F.2d 481, 487 (9th Cir. 1988). The twelve factors are:
(1) the time and labor required, (2) the novelty and
difficulty of the questions involved, (3) the skill req-
uisite to perform the legal service properly, (4) the
preclusion of other employment by the attorney due
to acceptance of the case, (5) the customary fee, (6)
whether the fee is fixed or contingent, (7) time limi-
tations imposed by the client or the circumstances,
(8) the amount involved and the results obtained, (9)
the experience, reputation, and ability of the attor-
neys, (10) the “undesirability” of the case, (11) the
nature and length of the professional relationship
with the client, and (12) awards in similar cases.
Id. at 252 n.4 (citing Kerr v. Screen Extras Guild, Inc., 526
F.2d 67, 70 (9th Cir. 1975)).
[16] Here, $165,508, which the district court awarded, was
the lodestar figure. The City argues that the lodestar figure
should be reduced because “(1) the short duration of the lower
court proceedings, (2) the minimal formal discovery necessi-
tated by the case, [and] (3) the fact [that] the parties appeared
jointly in court only once,” are compelling evidence that the
hours claimed by Ballen’s counsel were “excessive” and thus
“significantly inflated” the calculation. The City uses its own
hours to support its claim, arguing that “the significantly
fewer hours expended by the City’s counsel in defending this
action” support the position that Ballen’s counsel overworked
the case. We have previously said that only in rare circum-
stances should a court adjust the lodestar figure, as this figure
is the presumptively accurate measure of reasonable fees.
Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th
Cir. 1988); see also Cunningham, 879 F.2d at 484. District
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courts possess the necessary discretion to adjust the amounts
awarded to address excessive and unnecessary effort
expended in a manner not justified by the case.
[17] The district court’s attorneys’ fee award was not
excessive and there was no abuse of discretion in awarding
the fees requested.
VIII
Redmond’s Ordinance fails to satisfy Central Hudson’s
four-part test. The Ordinance impermissibly discriminates
against the commercial speech rights of businesses within the
City in a content-based manner more extensive than necessary
to serve Redmond’s legitimate governmental interests. The
district court’s summary judgment and grant of attorneys’ fees
in favor of Ballen are AFFIRMED.
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