Fantasyland Video, Inc. v. County of San Diego

Citation373 F.Supp.2d 1094
Decision Date14 June 2005
Docket NumberNo. CIV. 02CV2023-LABRBB.,No. CIV. 02CV1909-LABRBB.,CIV. 02CV1909-LABRBB.,CIV. 02CV2023-LABRBB.
PartiesFANTASYLAND VIDEO, INC., Plaintiff, v. COUNTY OF SAN DIEGO, Defendant. Tollis, Inc. and 1560 N. Magnolia Ave., LLC, Plaintiffs, v. County of San Diego, Defendant.
CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)

Clyde F De Witt, Weston Garrou and DeWitt, Los Angeles, CA, for Fantasyland Video, Inc., plaintiff.

Thomas Dale Bunton, County of San Diego Office of County Counsel, San Diego, CA, for County of San Diego, defendant.

A Dale Manicom, Law Office of A Dale Manicom, San Diego, CA, for Tollis Inc, movant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' JOINT MOTION FOR SUMMARY JUDGMENT; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; INJUNCTION; and ORDER TO SHOW CAUSE

BURNS, District Judge.

In their respective complaints, plaintiffs allege certain amendments to San Diego County ordinances regulating adult entertainment businesses violate their rights under the federal and California constitutions. Before the Court are plaintiffs' Joint Motion for Summary Judgment and defendant's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment. The parties also filed opposing and reply papers, as well as a joint statement of undisputed facts, almost 2,000 pages of legislative record, and over 700 pages of declarations and exhibits. Defendant also filed evidentiary objections.1 Although the parties requested oral argument, the Court finds the issues in both motions appropriate for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, plaintiffs' Joint Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART, and defendant's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment is GRANTED IN PART AND DENIED IN PART. As specified more fully below, the Court finds unconstitutional certain procedural provisions of the ordinance amendments pertaining to licensing and zoning regulations.

Background

In June 2002, the San Diego County Board of Supervisors passed Local Ordinance No. 9469, entitled "An Ordinance Amending the San Diego County Zoning Ordinance Relating to Adult Entertainment Establishments;" and Local Ordinance No. 9479, entitled "An Ordinance Amending the San Diego County Code of Regulatory Ordinances Relating to the Licensing and Regulation of Adult Entertainment Establishments." (Legislative Record ("LR"), at 15-32, 139-75.) Both of these ordinances were effective in July 2002.

Plaintiffs filed two separate complaints against San Diego County ("County") which have been consolidated. (Order filed Aug. 5, 2004, at 2, 5.) Plaintiff Tollis, Inc. owns property at 1560 N. Magnolia Avenue in the Pepper Drive/Bostonia area of San Diego County, which it leases to plaintiff 1560 N. Magnolia Ave., LLC. At this location, plaintiff 1560 N. Magnolia Ave., LLC operates a business called Deja Vu, which sells sexually explicit books, magazines, and novelties. Deja Vu also wants to offer live nude dancing at this location. It acquired its present location before the amendments went into effect, after obtaining the operating permit, and on the contingency it could offer nude entertainment. Hereafter, these plaintiffs will be referred to collectively as Deja Vu. Plaintiff Fantasyland Video, Inc. ("Fantasyland") operates a business at 1157 Sweetwater Road in the Spring Valley area of San Diego County, which includes an "Adult Arcade/Peep Show," an "Adult Bookstore," an "Adult Novelty Store," and an "Adult Video Store." (Jt. Stmnt of Facts, 4.)

In their complaints, plaintiffs seek a declaration the amendments to local ordinances which affect either the location or the activities conducted by their businesses violate their right to free speech provisions of the First Amendment. In addition, they seek an injunction prohibiting the enforcement of the amendments against them. Deja Vu also argues the amendments violate the California Constitution, and seeks damages arising out of the County's threat to enforce the amendments.

Although they filed a Joint Motion for Summary Judgment, each of the plaintiffs challenges only those portions of the amendments affecting their particular businesses. Plaintiffs' Joint Motion seeks summary judgment "in the form of an order enjoining the County from enforcing" the ordinances as amended because they are unconstitutional. The County's Motion seeks summary judgment in its favor on the ground all amendments to the ordinances are constitutional and enforceable against plaintiffs.

Discussion
I. Summary Judgment Standards

Federal Rule of Civil Procedure 56(c) empowers the court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001). The moving party bears the initial burden of demonstrating the absence of a "genuine issue of material fact for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it could affect the outcome of the suit under the governing substantive law. Id. at 248, 106 S.Ct. 2505. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

"When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case. Once the moving party comes forward with sufficient evidence, the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense." C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted).

In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out the absence of evidence from the nonmoving party. The moving party need not disprove the other party's case. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548; see also Garneau v. City of Seattle, 147 F.3d 802, 807 (9th Cir.1998).

If the movant meets his burden, the burden shifts to the nonmovant to show summary adjudication is not appropriate. Celotex, 477 U.S. at 317, 324, 106 S.Ct. 2548. The nonmovant does not meet this burden by showing "some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The "mere scintilla of evidence in support of the nonmoving party's position is not sufficient." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Accordingly, the nonmoving party cannot oppose a properly supported summary adjudication motion by "rest[ing] on mere allegations or denials in his pleadings." Id. at 256, 106 S.Ct. 2505. The nonmovant must go beyond the pleadings to designate specific facts showing there are genuine factual issues which "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. 2505.

In considering the motion, the nonmovant's evidence is to be believed and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Determinations regarding credibility, the weighing of evidence, and the drawing of legitimate inferences are jury functions, and are not appropriate for resolution by the court on a summary judgment motion. Id.

In this case, the parties filed cross-motions regarding some of the same causes of action. As discussed below, the County bears the burden of proof at trial with respect to some issues raised by the cross-motions; with respect to other issues, the burden is on plaintiffs. The mere fact the parties filed cross-motions "does not necessarily mean there are no disputed issues of material fact and does not necessarily permit the judge to render judgment in favor of one side or the other." Starsky v. Williams, 512 F.2d 109, 112 (9th Cir.1975). "[E]ach motion must be considered on its own merits." Fair Hous. Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001).

When proper grounds for granting summary judgment have not been established, "[s]ummary adjudication may be appropriate on clearly defined, distinct issues." FMC Corp. v. Vendo Co., 196 F.Supp.2d 1023, 1029 (E.D.Cal.2002) (citing Robi v. Five Platters, Inc., 918 F.2d 1439 (9th Cir.1990)). "An order under Rule 56(d) narrows the issues and enables the parties to recognize more fully their rights, yet it permits the court to retain full power to completely adjudicate all aspects of the case when the proper time arrives." FMC Corp., 196 F.Supp.2d at 1029-30 (citing 10B Wright & Miller, Federal Practice and Procedure (3d ed.1998), § 2737 at 316-18). Specifically, Rule 56(d) empowers the court to "ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted" and to "mak[e] an order specifying...

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