Mahgerefteh v. City of Torrance, Case No.: CV 17-2835 CBM

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Citation: 324 F.Supp.3d 1121
• Docket Number: Case No.: CV 17-2835 CBM
• Parties: Nazila MAHGEREFTEH and Patricia Montoro, Plaintiffs, v. CITY OF TORRANCE, Joyce Chan, and Nicholas P. Rea, Defendants.
• Decision Date: 27 August 2018

324 F.Supp.3d 1121

Nazila MAHGEREFTEH and Patricia Montoro, Plaintiffs,
v.
CITY OF TORRANCE, Joyce Chan, and Nicholas P. Rea, Defendants.

Case No.: CV 17-2835 CBM

United States District Court, C.D. California.

Signed August 27, 2018

324 F.Supp.3d 1125

Jerold D. Friedman, Law Office of Jerold D Friedman, Los Angeles, CA, Morgan Ricketts, Ricketts Law, Pasadena, CA, for Plaintiffs.

Robert O. Owen, Ajit Singh Thind, Rutan and Tucker LLP, Costa Mesa, CA, for Defendants.

AMENDED

ORDER RE: PARTIES' MOTIONS FOR PARTIAL SUMMARY JUDGMENT [DKT. NOS. 35, 40]

CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE

The matters before the Court are the parties' respective motions for partial summary judgment. (Dkt. Nos. 35, 40.) Defendants seek summary judgment in their favor on Plaintiff Mahgerefteh's § 1983 claim for unreasonable seizure under the Fourth Amendment. Plaintiffs seek summary judgment that certain provisions of the Torrance Municipal Code relating to its farmers' market are unconstitutional under the First Amendment and the speech/petition provisions of the California Constitution.

I. BACKGROUND

The facts are largely undisputed. Defendant City of Torrance ("the City") owns and operates a public Farmers' Market ("the Market"), which takes place in the parking lot of Charles H. Wilson Park every Tuesday and Saturday from 8 a.m. to 1 p.m. (Dkt. No. 42, Defendants' Response to Plaintiffs' Statement of Undisputed Facts ("PSUF") # 9.) It is open to the public, and no fee is charged to enter or use the Market, the parking lot, or the park. (PSUF # 9.) The fifth largest farmers' market in the United States, the Market is roughly 79,568 square feet in size and can attract 2,953 or more customers on a given market day. (PSUF ## 29-30, 38.) Defendant Joyce Chan is the Market's manager. (Dkt. No. 45-1, Plaintiffs' Response to Defendants' Statement of Undisputed Facts ("DSUF") # 7.) Defendant Nicholas Rea is a police officer employed by the City of Torrance. (Compare Dkt. No. 1 ¶ 7 with Dkt. No. 13 ¶ 7.)

Sellers reserve and occupy stalls at the Market to sell their goods and services to the public, and the City generates revenue by collecting a percentage of sellers' gross sales. (PSUF # 10.) The Market also includes a 10' x 30' "Expressive Conduct Area," where spaces may be reserved for activities such as "fundraising and information sharing by community groups and individuals, political outreach[,] and campaigning." (Dkt. No. 37-1, Torrance Municipal Ordinance No. 3791, Ex. A (Torrance Certified Farmers' Market Rules and Regulations ("Market Rules") ) §§ I.5, III.4.) The Expressive Conduct Area is divided into three 10' x 10' stalls, and no more than three "Expressive Conduct Users" are allowed to set up a stall in the Expressive Conduct Area per Market day. (PSUF # 26; Market Rules § III.4.) Those who

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wish to use the Expressive Conduct Area apply in advance for a spot, and a member of the City staff assigns one of the three spaces on a first-come–first-served basis. (DSUF # 4.) Applicants are limited to reserving a space at one Tuesday Market and one Saturday Market each month. (Market Rules § III.4.) Each Market day, any unreserved spaces can be claimed by submitting an application between 7:00 a.m. and 7:30 a.m. (Id. ) Unreserved spaces are also assigned on a first-come–first-served basis, and there are no limits on the number of times an individual or group may apply for and use an unreserved space. (Id. )

The Market Rules prohibit the following activities, except at Expressive Conduct User Spaces:

• "Circulating an initiative or referendum petition, or circulating advertising brochures"

• "Unauthorized solicitation — For purposes of this prohibition, ‘unauthorized solicitation’ means solicitation that is unrelated to the Market, is not conducted from an authorized selling space, or both. These prohibitions do not preclude any person or organization from conducting these activities during Market hours on sidewalks or other public property adjacent to the Market. Violations of these prohibitions will result in expulsion from the Market for the remainder of that Market day."

• "Commercial photography or videotaping"

(Market Rules § II.8.) Violation of the Market Rules constitutes a misdemeanor. (Torrance Municipal Code § 412.1.1-2.)

Plaintiffs Nazila Mahgerefteh and Patricia Montoro, who regularly attend the Market, are advocates of veganism. (PSUF ## 11-12.) They have engaged in advocacy of veganism at the Market on various occasions. (PSUF # 11.) In June 2016, Montoro reserved an Expressive Conduct Space for Saturday, July 23, 2016. (DSUF # 11.) On Saturday, July 2, 2016, Mahgerefteh and Montoro utilized an Expressive Conduct Space reserved by Mahgerefteh. (DSUF # 10.) On July 6, Chan emailed Montoro to inform her that her reservation of an Expressive Conduct Space for July 23 was forfeited because Montoro had already used an Expressive Conduct Space one Saturday in July. (DSUF # 11.)

On July 23, Mahgerefteh attempted to utilize an Expressive Conduct Space at the market. (DSUF # 12.) Mahgerefteh did not have a reservation for an Expressive Conduct Space on this date, and she was informed by City staff that she would not be allowed to use the Expressive Conduct Area. (DSUF # 13.¹ ) Plaintiff objected and refused to leave. (DSUF # 14.) Chan informed Defendant Officer Rea and another City officer that Mahgerefteh was violating the Market Rules and trespassing. (DSUF # 16.) The officers advised Mahgerefteh that she was not allowed to utilize the Expressive Conduct Area on that day, but she refused to leave. (DSUF ## 17-18.) The officers then "began to arrest" Mahgerefteh. (DSUF # 20.) Officer High grabbed Mahgerefteh's right arm, while Officer Rea grabbed her left arm. (DSUF ## 21-23.) After a few seconds of being held, Mahgerefteh said that she would leave and the officers released her. (DSUF ## 25-28.)

II. LEGAL STANDARD

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a "court

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shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis on which a "reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see also Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("Where the record taken as a whole would not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ") (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). A fact is "material" only if it might affect the outcome of the suit under governing law. Anderson , 477 U.S. at 248, 106 S.Ct. 2505.

If the moving party satisfies this initial burden, Rule 56 requires the party opposing the motion to respond with a "showing sufficient to establish the existence of [each properly challenged] element essential to that party's case, and on which that party will bear the burden of proof at trial ... since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex , 477 U.S. at 322-23, 106 S.Ct. 2548. In attempting to establish a genuine factual dispute, the opposing party may not rely upon conclusory allegations or pleading unsupported by factual data, but instead must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." See Celotex , 477 U.S. at 324, 106 S.Ct. 2548. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita , 475 U.S. at 586, 106 S.Ct. 1348. "If the [opposing party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby , 477 U.S. at 249-50, 106 S.Ct. 2505.

"[I]nferences to be drawn from the underlying facts," however, "must be viewed in the light most favorable to the party opposing the motion." See Matsushita , 475 U.S. at 587, 106 S.Ct. 1348. At the summary judgment stage, the court's function is not to weigh the evidence or determine the truth of the matter but, rather, to determine whether there is any genuine issue for trial. Anderson , 477 U.S. at 249, 106 S.Ct. 2505 ; Balint v. Carson City , 180 F.3d 1047, 1054 (9th Cir. 1999) (en banc).

In determining any motion for summary judgment or partial summary judgment, the court may assume that the material...