Doe v. City of San Diego

• Decision Date: 16 March 2018
• Docket Number: Case No.: 14cv1941–L(AGS), Case No.: 14cv1942–L(AGS)
• Citation: 313 F.Supp.3d 1212
• Parties: Jane DOE, Plaintiff, v. CITY OF SAN DIEGO, et al., Defendants; Tanya A., et al., Plaintiffs, v. City of San Diego, et al., Defendants.
• Court: U.S. District Court — Southern District of California

313 F.Supp.3d 1212

Jane DOE, Plaintiff,

v.CITY OF SAN DIEGO, et al., Defendants;

Tanya A., et al., Plaintiffs,

v.City of San Diego, et al., Defendants.

Case No.: 14cv1941–L(AGS)

Case No.: 14cv1942–L(AGS)

United States District Court, S.D. California.

Signed March 16, 2018

Marlea Francesca Dell'Anno, The Gilleon Law Firm, Steve Hoffman, Law Office of Steve Hoffman, San Diego, CA, for Plaintiffs.

Christina M. Milligan, Donald F. Shanahan, Le-Mai Phuong Dam, Rayna A. Stephan, Timothy C. Stutler, Walter Clement Chung, Pamela Chalk, Office of the San Diego City Attorney, San Diego, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS FOR PARTIAL JUDGMENT ON THE PLEADINGS

Hon M. James Lorenz, United States District Judge

Pending before the Court are Plaintiffs' motions for partial judgment on the pleadings. The motions, filed in the above-captioned related cases, are identical. Defendants filed oppositions and Plaintiffs replied. The Court decides this matter on the briefs without oral argument. See Civ. L. R. 7.1(d.1). For the reasons stated below, Plaintiffs' motions are granted in part and denied in part.

I. BACKGROUND

Plaintiffs were entertainers at Cheetahs and Expose, adult entertainment establishments in San Diego. Adult entertainment establishments are regulated by the San Diego Police Department. San Diego Municipal Code ("SDMC") § 33.3601.¹ A police permit is required to operate an adult entertainment establishment or perform as an adult entertainer. (SDMC §§ 33.3603 & 33.3604.) Section 33.0103 (the "Inspection Provision") confers authority on police officers to inspect police-regulated businesses, including adult entertainment establishments. (See also First Am. Compl., 14cv1941, doc. no. 21 ("Doe Compl.") at 5–6; Second Am. Compl., 14cv1942, doc. no. 24 ("Tanya A. Compl.") at 6.)

According to Plaintiffs, ostensibly based on the Inspection Provision, on July 15, 2013 and March 6, 2014, armed police officers wearing bullet proof vests raided Cheetahs and Expose. (Doe Compl. at 3; Tanya A. Compl. at 4.) The officers interrogated the entertainers and photographed each in a nearly nude state claiming they had to document their tattoos. (Doe Compl. at 3–4; Tanya A. Compl. at 4–5.) The entertainers who objected to detention or photographs were threatened with arrest, and armed officers were posted at the doors to prevent the entertainers from leaving. (Doe Compl. at 3–4; Tanya A. Compl. at 4–5.) They were detained for one hour or more. (Doe Compl. at 4; Tanya A. Compl. at 5.)

Based on these incidents, two nearly identical actions² were filed in state court alleging violation of federal constitutional rights, as well as other causes of action. Defendants removed both actions to this Court based on federal question jurisdiction under 28 U.S.C. §§ 1331 and 1441. The actions were coordinated for pretrial proceedings.

Pending before the Court are Plaintiffs' motions for partial judgment on the pleadings. Plaintiffs seek judgment on their claims that the Inspection Provision on its face violates the First and Fourth Amendments of the United States Constitution.³

II. DISCUSSION

"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. Proc. 12(c). "Judgment on the pleadings is properly granted when ... there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Chavez v. United States , 683 F.3d 1102, 1108 (9th Cir. 2012) (internal quotation marks and citation omitted). However, "a plaintiff is not entitled to judgment on the pleadings if the defendant's answer raises issues of fact or affirmative defenses." Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1159 (9th Cir. 2015) (citation omitted); see also Gen. Conf. Corp. of Seventh–Day Adventists v. Seventh–Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989) ("[A] plaintiff is not entitled to judgment on the pleadings when the answer raises issues of fact that, if proved, would defeat recovery. Similarly, if the defendant raises an affirmative defense in his answer it will usually bar judgment on the pleadings.") (citations omitted).

Analysis of the pleadings under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6). Chavez , 683 F.3d at 1108. A motion under Rule 12(b)(6) tests the sufficiency of the complaint. See Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). A plaintiff cannot prevail where the complaint lacks a cognizable legal theory. See Shroyer v. New Cingular Wireless Serv., Inc. , 622 F.3d 1035, 1041 (9th Cir. 2010) (internal quotation marks and citation omitted). Alternatively, a plaintiff cannot prevail if the complaint presents a cognizable legal theory, yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc. , 749 F.2d 530, 534 (9th Cir. 1984).

Plaintiffs allege that the Inspection Provision is unconstitutional on its face. (Doe Compl. ¶¶ 35 & 129–32; Tanya A. Compl. ¶ 36.) In their opposition, Defendants counter that "the Court cannot grant the motion[s] given that there are clearly multiple factual disputes by and between the parties as to how the inspections at issue were conducted." (Opp'n, 14cv1941, doc. no. 70 ("Opp'n") at 3.) "A facial challenge is an attack on a statute itself as opposed to a particular application." City of Los Angeles v. Patel, ––– U.S. ––––, 135 S.Ct. 2443, 2449, 192 L.Ed.2d 435 (2015). Accordingly, a facial attack does not raise questions of fact related to the enforcement of the statute in a particular instance. Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 133 n.10, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ("Facial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision"). Defendants' denials and admissions of Plaintiffs' factual allegations regarding the searches conducted at Cheetahs and Expose are irrelevant to the facial attack claims. In their answers, Defendants do not dispute this. They assert that the facial attack allegations "contain[ ] legal conclusions, legal argument, and questions of law to be determined solely by the Court, to which no response is required." (Ans. to Pl.'s First Am. Compl., 14cv1941, doc. no. 42 ("Doe Answer") ¶¶ 37⁴ & 129–32; Ans. to Pls' Second Am. Compl., 14cv1942, doc. no. 25 ("Tanya A. Answer") ¶ 36.)

Further, Defendants maintain that a motion for judgment on the pleadings cannot be granted if affirmative defenses are asserted. They proffer this contention in a conclusory fashion without argument to show how any of their defenses could defeat Plaintiffs' facial attack. (Opp'n at 2–3.) Upon review of the operative answers in both actions, none of the affirmative defenses is sufficient to preclude deciding Plaintiffs' motions on the merits.

Defendants raised lack of subject matter jurisdiction and standing as affirmative defenses. (Doe Ans. ¶¶ 135 & 137; Tanya A. Ans. at 37 ¶¶ 1 & 3; see Opp'n at 3.) Because Plaintiffs allege violations of federal law, the Court has federal question jurisdiction under 28 U.S.C. § 1331.⁵

Standing under Article III "requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant [her] invocation of federal-court jurisdiction." Summers v. Earth Island Inst. , 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (internal quotation marks and citation omitted, emphasis in original). A plaintiff must show she has suffered an injury in fact, the injury is fairly traceable to the challenged action of the defendant, and it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Maya v. Centex Corp. , 658 F.3d 1060, 1067 (9th Cir. 2011) (internal quotation marks and citations omitted). "In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license." City of Lakewood v. Plain Dealer Pub. Co. , 486 U.S. 750, 764, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), quoting Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). "This exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court." Forsyth County, 505 U.S. at 129, 112 S.Ct. 2395.

Plaintiffs, as adult entertainers, are directly affected by the Inspection Provision, as they are required to be licensed, and are therefore subject to the Inspection Provision. (See Doe Compl. ¶¶ 6 & 54; Tanya A. Compl. ¶¶ 6–8 & 56; cf. SDMC §§ 33.0101(b) & (c), 33.3602 & 33.3604.) Defendants' argument that there is a factual dispute whether Plaintiffs' constitutional rights were violated during the searches at issue (Opp'n at 3) is irrelevant to the facial attack claims as well as to Plaintiffs' standing to assert them.

Defendants also alleged failure to state a claim. (Doe Ans. ¶ 136; Tanya A. Ans. at 37 ¶ 2.) They had moved twice for dismissal on this ground in each case, and the Court issued orders which allowed the facial attack claims to proceed. (See case no. 14cv1941 docs. no. 18 & 35; case no. 14cv1942 docs. no. 11 & 23.) The affirmative defenses of failure to state a claim therefore do not preclude Plaintiffs' motions. See Heller Fin., Inc. v. Midwhey Powder Co., Inc. , 883 F.2d 1286, 1294–95 (7th Cir. 1989) (affirmative defenses restating a previously denied defense motion are meritless).

Next, Defendants alleged as an affirmative defense that Plaintiffs are not entitled to declaratory or injunctive relief. (Doe Ans. ¶ 147; Tanya A. Ans. at 38 ¶ 13.) Affirmative defenses are...