good morning my name is karen frustrating and i represent the plaintiff in appellant architecture art we have four claims that were dismissed on summary judgment i'm going to briefly summarize the argument as to each and then gloss back over whatever may be of interest to the court the first claim that should be reversed if any of the underlying claims are reverses the intentional interference claim the reason it was dismissed was the court found there was no independent wrong if one of the other three claims is reversed there is an independent wrong and that one should be reversed going to the other subsume claims under equal protection they have a class of advertisers who wish to post graphic art particularly during our july come ican event being the original comic con venue and these divided into two classes one is the class of advertisers that are approved by comic thirteen and there's an interesting thing that you should know about when those citations began is that they were cited as removed within seventy two hours comic con lasts for seventy two hours so basically the city was saying take it down by the end of comic con we were never given that ability we were discriminated against because we didn't pay the comic con bounty that they demanded from approved advertisers and there is a plethora of evidence in the record of the exchange between the city and comic con saying did you approve this is this ok take this down i don't like it oh here sony th didn't pay their balance the city says wait stop the process offer of evidence in the record and brief cites lots of emails and i read a lot of emails and i didn't see evidence of word of the propositions asserted so can snag they have stepped back on committing to pay if they don't commit with us today it can't happen the city response is oh there may be a problem please do not issue the permit yet three exclamation points that's the most telling email in the record in my opinion for what i'm sorry permit for was the and this goes deeper into my argument and that is under the free speech argument that there are too many exceptions to this city has rules the exception that they use is called at the wording for an answer to the question i pose yes the question was what they do is they issue permit for what what is it they were seeking a permit for that's all i'm asking ok what the city issues is called temporary use permits this is a unprecedented use of the temporary use permit and that allows a sign no they should not  assign you're talking about use of space yes but that's what i was asking right but under the temporary you know how come of this so hard to ok it shouldn't be that hard to get an answer the question i just want to know what kind of permit you're talking about temporary use permit or use a space for use of a space it was not assigned it shouldn't be assigned but the city makes a lister and comic con of all of the temporary use permits that they've issued and if you look at the testimony from code compliance that we have in the record if they are on the list for a temporary use permit they're not cited for anything including the use of a sign and so even though the temporary use permit should not be about the use of the sign the city makes it a protection for the use of the sign and so that the words that committed in the record the temporary use permits are for example are one one one two three three four five eleven twenty seven eleven twenty eight and eleven forty three and if you look at our zero six one one the testimony of cynthia benito's could dhamma who is from the city she's asked what is your understanding within special events of what regulations are pertaining to signage in san diego and she says pertaining to special events we really wouldn't have a policy within special events regarding signage not in special events no and so these temporary use permits that issue and if you look example at page one one one two it gives a list of everything that they're approving and it does not make a reference to any signage but the testimony has ben that if there's a temporary use permit on the list they don't get cited by code enforcement and even if there's a si and read or do whatever they were free to do whatever they want because of a crime because they are part of comic con which is this revered event in san diego and they're given a lot of discretion and that is  property or location city property or city property is we are fifteen seventy is a map that we put into the record that shows where the signs have gone up on city property and the court below found that there was no evidence of what was on city property versus port property and if you look at the fifteen seventy it shows you that we showed them exactly where the signs were going up on city property and our signs signs were also on city property and when you get into the issue of signs and the free speech issue  it is our contention that under the reid case this case is subject to script scrutiny and the reason is that under the case the holding is i'm sorry two one zero if you look at that section which is the governing sign ordinance the focus is on copy copied means words words equals content under the case under page two two two seven if the distinction is based on content and the court has reviewed the content in order to decide if it's a sign that's legal then you're going on a content based resolution if you look at the very first section of one four to twelve ten it says copy regulations permit interchangeable copy on signs shall contain on premises or public interest messages only let's look at one of the examples of the murals that my client put up it's a golf advertisement it has no words on it it has the nike swish that was one of the signs that was cited there's no content on that site how can it fall within its any of us regulation and mikey's not put it up there because it's pretty artwork it's putting up with the nike swish how is that not commercial speech how is that not because the regulation in san diego doesn't say commercial speech it says per minute or changeable copy copy isn't a nike swish copy and the words have meaning copy ten words have meaning but swish does not it's not copy how do you define copy when you put up a picture of a bottle of liquor that is the same bottle of liquor that you'll see on a shelf in a store is there coffee on that when you put up the swish nobody thinks everybody thinks nike certainly but we're looking at the san diego sign ordinance and determining whether it's content based and when it entirely relies on the word copy its content base because you have to read the words and there have to be words and so why does there have to be words as a because you you interpret copy to require words because that's what copied means well suppose i think copy means something broader nike didn't put that up there is a pretty picture we don't contend that they did we just are looking why isn't the superimpose wish copy white why is it copy i would i would come back and since it's an extra message it's not the pretty picture it's of you know or the pretty picture it's a logo well yeah but is it coffee as that term is understood in advertising and that's why the san diego sign ordinance is defective because it relies on copy now if i was looking at this section a one and it said permit or changeable copy logos trademarks insignia we'd be having a different conversation but i'm looking at the ordinance that we're deciding here today and the city who wrote this ordinance chose to make it rely on copy and because they chose to make it rely on copy they made this a content based ordinance and off premises on premises we're not making that distinction we're saying regardless of what it is what do we have to look at to determine if it's a legal sign and what the city says we have to look except subsequent three i have looked at the cases subsequent to read and none of them have said that the content based findings in read don't matter and i have looked at you know retail digital network which didn't even mention read i've looked at first resort versus herrera which talks about the ideologically or the perspective of the speaker and i would note that i've now at the point where i wanted to reserve free minutes for rebuttal and request permission to reserve those three minutes thank you thank you evidence in the record or any evidence that i'm aware of even outside the record which would indicate that there's any kind of a special relationship or pay for play scheme between the city  some coordination between the city officials and there is there is absolutely communication your honor because of course this is a huge event logistically it's a it's a huge event  and there needs to be coordination but there's not there's no evidence and there's not any discrimination against architecture art and some  advertisers and in fact there's no evidence in the record of any comic con approved advertisers being first of all any advertisers approved by comic con to begin with but then no evidence that they've been given any special treatment or faces a well as i understood from the record that she points out that ok there's architecture art she points to various sun signs or murals or whatever they she does your honor and there's a couple of issues on that first of all there's no evidence that those other advertisers of first were were not cited and there's no evidence even more importantly that any of those other signs were approved by the city at most what architecture ard has tried to show is that there was lax enforcement which this court's already determined is not evidence of discrimination and if you look if you look at all of the evidence that architecture art put in front of the court there was one of their signs the heineken sign that was sighted in two thousand and twelve during comic con that's the only so that's the only sign that i've been able to do to locate in all of the evidence that been produced of an architecture art sign that was that somehow they were being discriminated against in favor of comic con advertisers is not borne out by the evidence which is your statement reflecting that the other side patients were outside the time period of comic on that point you're making it is your honor in two thousand and eleven there was one warning that was issued to architecture art for their rain man sign when was it what month was that  that was that was actually issued in august august tenth of two thousand and eleven when the comic july last week of july in two thousand and twelve there was a destination l a sign that was actually  allowed to remain after they deleted the the l a los angeles words because then it qualified as a mural they alaska airlines sign was also permitted in two thousand twelve after they painted out alaska airlines because again that was advertising and then a warning was given to newcastle in november of two the outside questions and warnings the first two were they had a time period during or adjacent to comic con they were not your honor the the alaska air was october the jack daniels was given a citation in november of two thousand and twelve the new castle warning was given in in november of two thousand and twelve the destination l a where they painted the agree to paint out l a that was in june of two thousand and twelve  none of the site none of the citations or warnings were issued during comic con mikee was in february of two thousand and thirteen naked juice was feb twenty eighth that was a warning only a then the shock top blue moon and michelob ultra permits that were revoked or not issued were in may and if i could just briefly address a couple of the the items that counsel refer to there was the the e mail record number zero four seven eight which is the e mail saying there may be a problem please do not issue the permit yet the deposition of the of the city employee carolyn wormser confirmed and it's part of the record that not that any nonpayment to comic con by sony would not dictate the issuance of a permit in this case and again we are talking about a temporary use permit for an event at a particular location and if you look at page one one one two of the record which also was cited by counsel that is a  letter confirming a temporary use permit being approved by center city by civic sandiego and number five of the conditions or limitations of that temporary use permit says there shall be no off premises signs advertising the event so there they there was a limitation to signage in that in that temporary use it's not it's not the city they so over see the the center city for lack of a better term they they for instance can issue this temporary or approve a temporary use permit but with respect to what status under california what is it it takes the place of the redevelopment agency  it's not a part of the city it's its own separate entity that authority to issue a temporary use permit it can it can approve the temporary use permits but that's completely separate from the signage that we're talking about in this that that's not correct your honor and again well because first of all the municipal code applies to all of the city of san diego and this temporary use permit specifically says that no off premise con but at a different location and this was at sixth avenue and they're all every every every event is still it didn't apply to any of her signs she didn't apply for a temporary use permit for any of her science so it really is irrelevant to the analysis in this case architecture claims  that they that they were these temporary use permits and it allowed all everyone to do whatever they wanted there is no evidence of that there's no evidence that there was a temporary use permit that was issued that allowed one of these offending signs the evidence in the record that any other advertisers with either murals with copy or off premises evidence of that that the evidence that architecture are has put forward is that there were these other signs and so therefore the city approved them or permitted them but but that's not what the evidence shows what the evidence shows is that there may have been offending signs that were up  but that doesn't mean that they were approved and even there what architecture art has put forth in their evidence the best as i can make of it is in two thousand and ten there was a red faction sign and a resurrection or two signs that would not be in compliance with the city ordinances but that's not to say that they were permitted first of all and second of all that's not showing some pervasive exception to the sign ordinance or that that i would submit doesn't even show lax enforcement when you've got one or two signs up that that with no evidence of being cited when i spoke to her for the free speech argument i'm sorry did you want to respond to her feet free speech argument that you just made yes that copy yes i do she cites first of all that i think this is the first time that argument's been raised but second of all that's just the very first line of the that the sign ordinance basically they the mural exception the onst on premises off the premises exception those are in the statutes as those are separate ordinances themselves and so those  specifically lay out what what is or is not permitted and they have the mural exception is not vague it's very clear you can't have ever ties and you can't have you can't have logos you can't have trademarks the premises off premises exception thing has been repeatedly upheld as content neutral and i don't i would submit that read read does not apply in this case because again we're dealing with content neutral ordinances read did not address commercial speech and even the thing concurring justices said that that the strict scrutiny would probably not apply or they wouldn't apply to the content to a content neutral or on site exception and but even if strict scrutiny applies in this case they the city has  you first of all i would take significant issue with the contention of the city that there were one or two signs up during comic con just look at the map that we put in the record that i referenced during my original argument this city is awash w city's contention that there was no evidence that no one else was cited if you look at your thirteen sixty four we served request for production for any of the citations related to the science thirteen seventy nine dated twenty thirteen was the first one that was produced as to whether we were ever sighted more than once during comet could we were sighted eight times during comic con and that is in the record at  seven twenty five through seven thirty five and you are seven thirty nine through seven forty furthermore i would contend that the very fact that many of the citations my client received were the outside of the  timeline of comic con shows that the city makes so many exceptions during comic con that if you put up something that they consider a sign outside of comic con you're going to get cited because you're not part of you citations were not during july during the comic con month well then what you're saying is that the city only cites people who post signs and we don't agree with that outside of con period then again you're showing discrimination against people who are not participating in comic con and council member preference to the mural exception which is also in section fourteen ten and said well it's not vague and it's not content based well if you look at it it says when painted graphics are installed on other than a wall or fence or contain copy advertising symbols lettering trademarks or other references to the premises products or services only only the actual copy area is considered thank you thank you we appreciate your arguments this morning