Crownholm v. Moore

• Decision Date: 23 December 2022
• Docket Number: 2:22-cv-01720-DAD-CKD
• Parties: RYAN CROWNHOLM, et al., Plaintiffs, v. RICHARD B. MOORE, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

RYAN CROWNHOLM, et al., Plaintiffs,
v.
RICHARD B. MOORE, et al., Defendants.

No. 2:22-cv-01720-DAD-CKD

United States District Court, E.D. California

December 23, 2022

ORDER DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

(Doc. No. 12)

This matter came before the court on December 6, 2022 for a hearing on a motion for a preliminary injunction filed on October 18, 2022 on behalf of Ryan Crownholm and Crown Capital Adventures, Inc. (“plaintiffs”) seeking declaratory and injunctive relief against Richard B. Moore, Rossana D'Antonio, Michael Hartley, Fel Amistad, Alireza Asgari, Duane Friel, Kathy Jones Irish, Coby King, Elizabeth Mathieson, Paul Novak, Mohammad Qureshi, Frank Ruffino, Wilfredo Sanchez, and Christina Wong (“defendants”), in their official capacities as officers and members of the California Board for Professional Engineers, Land Surveyors, and Geologists (the “Board”). (Doc. No. 12.) Attorney Paul Avelar appeared by video for plaintiffs. Deputy Attorney General Sharon O'Grady appeared by video on behalf of defendants. For the reasons explained below, the court will deny plaintiffs' motion for a preliminary injunction.

1

BACKGROUND

Plaintiff Crown Capital Adventures, Inc., a Delaware corporation registered as a foreign corporation in California, operates the website MySitePlan.com, which creates and sells site plans in nearly all states of the United States, including California. (Doc. No. 12-2 at ¶¶ 5, 49.) Plaintiff Ryan Crownholm is the sole shareholder, director, and officer of Crown Capital Adventures, Inc., as well as the sole owner and operator of MySitePlan.com. (Id. at ¶¶ 4, 6.) Mr. Crownholm is not authorized to practice land surveying in California, as he is neither a licensed surveyor nor a civil engineer with a pre-1982 license. (Id. at ¶ 7); see Cal. Bus. & Prof. Code § 6731 (stating that civil engineers who became licensed before January 1, 1982 may also practice land surveying). In California, plaintiffs create site plans using publicly available geographic information system mapping data, satellite imagery, and client-provided information, and then sell them to customers for planning, infrastructure management, general information, and submission to county and municipal building permit departments. (Doc. No. 1 at ¶¶ 2, 123.)

The Board is a consumer protection agency within the California Department of Consumer Affairs. (See Doc. No. 13-1 at 42.) The Board regulates the practice of land surveying through administering the California Professional Land Surveyors' Act (the “Act”), California Business & Professions Code §§ 8700 through 8805. Section 8708 of the Act restricts the practice of land surveying in California to those who have a license or are specifically exempted, and § 8790 grants the Board disciplinary powers to enforce this restriction. California law defines the practice of land surveying to include, among other things, a person who “[l]ocates, relocates, establishes, reestablishes, or retraces the alignment or elevation for any of the fixed works embraced within the practice of civil engineering”; “[l]ocates, relocates, establishes, reestablishes, or retraces any property line or boundary of any parcel of land, right-of-way, easement, or alignment of those lines or boundaries”; “[d]etermines the information shown or to be shown on any map or document prepared or furnished in connection with any one or more of the functions described in [this statute]”; or “[p]rocures or offers to procure land surveying work for themselves or others.” Cal. Bus. & Prof. Code § 8726(1), (3), (7), (9).

2

On December 28, 2021, the Board issued a citation order to plaintiffs for offering and practicing land surveying without legal authorization, in violation of the Act, on the grounds that the site plans that they offered through MySitePlan.com depicted “the location of property lines, fixed works, and the geographical relationship thereto,” falling “within the definition of land surveying.” (Doc. Nos. 12-1 at 11, 12; 12-3 at 11.) Plaintiffs' website includes a disclaimer reading, “THIS IS NOT A LEGAL SURVEY, NOR IS IT INTENDED TO BE OR REPLACE ONE.” (Doc. No. 13-2 at ¶ 9.) However, the website also displays statements such as: “Guaranteed Acceptance,” “Widely accepted by building departments and HO's for residential permitting purposes,” “OUR SITE PLANS ARE GREAT FOR [¶] Demolition permits. . . . [¶] Conditional Use Permits. . . . [¶] Construction Permits. . . . [¶] Sign Permits. . . . [¶] Residential and Commercial Site Plans. . . .” (Id.) The citation order issued by the Board directed plaintiffs to pay a fine of $1,000 and to “cease and desist from violating” California Business & Professions Code §§ 8792(a) and (i) and 8726(a)(1), (3), and (9). (Doc. Nos. 12-3 at 10; 13 at 12.) California Business & Professions Code § 8792(a) and (i) make it a misdemeanor to “practice[], or offer[] to practice, land surveying in this state” or “manage[] or conduct[] as manager, proprietor, or agent, any place of business from which land surveying work is solicited, performed, or practiced” without legal authorization.

Plaintiffs were advised that they could appeal the citation by requesting an informal conference, a hearing before an administrative law judge (“ALJ”), or both. (Doc. No. 13 at 13.) On January 20, 2022, plaintiffs submitted a notice of appeal and requested a hearing before an ALJ. (Id.) Plaintiffs withdrew the notice of appeal on September 22, 2022, less than one week before the requested hearing scheduled for September 27, 2022, and they expressly accepted the terms of the Board's citation and agreed not to appeal it. (Doc. No. 13-1 at 4-5, 42.)

On September 29, 2022, plaintiffs filed a complaint against defendants seeking to declare the Act, and in particular, California Business & Professions Code §§ 8726(a)(1), (7), and (9), and 8792(a) and (i), unconstitutional on its face and as applied to them and to enjoin its enforcement. (Doc. No. 1 at 29.) Plaintiffs assert three causes of action in their complaint. The first claim, brought under 42 U.S.C. § 1983 as an as-applied challenge, asserts that defendants

3

violated the First Amendment of the U.S. Constitution by restraining how plaintiffs create and disseminate non-authoritative site plans to customers “for planning, infrastructure management, general information, and submission to California county and municipal building permit issuing department purposes.” (Id. at 20-22.) Plaintiffs allege that the way defendants apply the Act is a “content- and speaker-based restriction on the ability to use and generate information.” (Id. at ¶ 128.) Plaintiffs' second claim, brought under 42 U.S.C. § 1983 as a facial challenge, asserts that California Business & Professions Code § 8726 is “unconstitutional on its face because it so vague that there is no way to know that it outlaws picture-drawing and/or it is so overbroad that it criminalizes innumerable wholly-innocuous pictures.” (Id. at 23.) Plaintiffs bring their third cause of action under the Fourteenth Amendment's Due Process and Equal Protection Clauses. (Id. at 26.)

On October 18, 2022, plaintiffs filed the pending motion for a preliminary injunction seeking to enjoin enforcement of the Act. (Doc. No. 12.) On November 1, 2022, defendants filed their brief in opposition to the pending motion, and plaintiffs filed their reply thereto on November 14, 2022. (Doc. Nos. 13, 14.)

ANALYSIS

A. Abstention

1. Younger Abstention

Defendants first assert that the court need not consider the merits of the pending motion because the Younger abstention doctrine applies here. (Doc. No. 13 at 14.) In Younger, the U.S. Supreme Court held that “absent extraordinary circumstances, a federal court may not interfere with a pending state criminal prosecution.” Potrero Hills Landfill, Inc. v. County of Solano, 657 F.3d 876, 882 (9th Cir. 2011) (citing Younger v. Harris, 401 U.S. 37, 54 (1971)). The Supreme Court has since extended Younger abstention to two additional categories of cases identified in its decision in New Orleans Pub. Service, Inc. v. Council of New Orleans (“NOPSI'), 491 U.S. 350, 367-68 (1989): “‘[1] state civil proceedings that are akin to criminal prosecutions, and . . . [2] state civil proceedings that implicate a State's interest in enforcing the orders and judgments of its courts.'” Herrera v. City of Palmdale, 918 F.3d 1037, 1043 (9th Cir. 2019) (quoting ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund,

4

754 F.3d 754, 759 (9th Cir. 2014)). Together, these three categories of cases are known as the NOPSI categories. Id. at 1044.

“To warrant Younger abstention, a state civil action must fall into one of the NOPSI categories, and must also satisfy a three-part inquiry: the state proceeding must be (1) ‘ongoing,' (2) ‘implicate important state interests,' and (3) provide ‘an adequate opportunity . . . to raise constitutional challenges.'” Id. (quotingMiddlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). In addition, the Ninth Circuit has “articulated an implied fourth requirement that (4) the federal court action would ‘enjoin the proceeding, or have the practical effect of doing so.'” Potrero Hills Landfill, Inc., 657 F.3d at 882 (quoting AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1148-49 (9th Cir. 2007)). “For Younger to apply, all four requirements must be ‘strictly satisfied.'” Barra v. City of Kerman, No. 1:08-cv-01909-OWW-GSA, 2009 WL 1706451, at *5 (E.D. Cal. June 9, 2009) (citing AmerisourceBergen Corp., 495 F.3d at 1149).

At the hearing on the pending motion for a preliminary injunction, defendants argued that the first requirement for abstention under Younger applies here because plaintiffs agreed to the cease-and-desist order and are subject to further proceedings if they were to violate it. However, the court finds that the first requirement of Younger is absent. On...