Vivid Entm't, LLC v. Fielding

• Decision Date: 16 August 2013
• Docket Number: Case No. CV 13–00190 DDP (AGRx).
• Parties: VIVID ENTERTAINMENT, LLC; Califa Productions, Inc.; Jane Doe a/k/a Kayden Kross, Plaintiff, v. Jonathan FIELDING, Director of Los Angeles County Department of Public Health; Jackie Lacey, Los Angeles County District Attorney, and County of Los Angeles, Defendants.
• Court: U.S. District Court — Central District of California

965 F.Supp.2d 1113

VIVID ENTERTAINMENT, LLC; Califa Productions, Inc.; Jane Doe a/k/a Kayden Kross, Plaintiff,

v.Jonathan FIELDING, Director of Los Angeles County Department of Public Health; Jackie Lacey, Los Angeles County District Attorney, and County of Los Angeles, Defendants.

Case No. CV 13–00190 DDP (AGRx).

United States District Court, C.D. California.

Aug. 16, 2013.

H. Louis Sirkin, Santen and Hughes LPA, Cincinnati, OH, Janet Lynn Grumer, Matthew D. Peterson, Davis Wright Tremaine LLP, Los Angeles, CA, Paul J. Cambria, Jr., Timothy P. Murphy, Lipsitz Green Scime Cambria LLP, Buffalo, NY, Robert Corn–Revere, Ronald G. London, Davis Wright Tremaine LLP, Washington, DC, for Plaintiff.

Andrea E. Ross, Los Angeles, CA, John K. Ly, Glaser Weil Fink Jacobs Howard Avchen & Shapiro LLP, Los Angeles, CA, for Defendants.

ORDER DENYING IN PART AND GRANTING IN PART INTERVENERS' MOTION TO DISMISS; DENYING IN PART AND GRANTING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION; AND VACATING PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS

[Docket Nos. 49, 55, 64]

DEAN D. PREGERSON, District Judge.

I. Background

Plaintiffs Vivid Entertainment, LLC (“Vivid”) and Califa Productions, Inc., produce adult films. (Compl. ¶¶ 8–9, Docket No. 1.) Plaintiffs Jane Doe, known professionally as Kayden Kross (“Ms. Kross”), and John Doe, known professionally as Logan Pierce (“Mr. Pierce”), are performers who appear in adult films. ( Id. ¶¶ 10–11.)

The adult film industry regularly tests actors for sexually transmitted infections (“STIs”). ( Id. ¶¶ 20–31.) During the November 2012 elections, Los Angeles County passed, via referendum, The County of Los Angeles Safer Sex in the Adult Film Industry Act (“Measure “B”). ( Id. ¶ 36; Docket No. 58–1 Ex. B text of Measure B); Los Angeles County Code § 11.39 (“§ 11.39”), et seq. (codifying Measure B). Measure B forces producers of adult films, before any production can occur, to pay a fee and obtain a permit from the County Department of Public Health (the “Department”), which is tasked with enforcing Measure B. ( Id. ¶ 41–43.) The Department of Public Health, set the permit fee in the range of $2,000 to $2,500 per year. (Compl. ¶ 48.) Once approved, the film producers must display the permit at all times during filming. ( Id. ¶ 41.) A permit is valid for two years, but is, at all times, subject to immediate revocation. ( Id.) Once a permit is granted, Measure B requires that performers engaging in anal or vaginal sexual intercourse to use condoms during filming. (Compl. ¶ 42.)

Department inspectors are granted access to “any location suspected of conducting any activity regulated by” Measure B, without notice. § 11.39.130. Inspectors can look at personal property or private documents from any person present at any location if there is suspicion of a Measure B violation. See id.

Plaintiffs have sued various County officials for Declaratory and InjunctiveRelief. ( See generally Compl.) Because Defendants have declined to defend Measure B's constitutionality, this Court has allowed Michael Weinstein, Marijane Jackson, Arlette De La Cruz, Mark McGrath, Whitney Engeran, and the Campaign Committee Yes on B, Major Funding by the AIDS Healthcare Foundation (“Interveners”) to intervene. ( See generally Order Granting Motion to Intervene, Docket No. 44; Order Denying Plaintiffs' Motion for Reconsideration, Docket No. 78.) Interveners were Measure B's official proponents. ( Id. at 2:19–20.) Presently before the Court is Interveners' Motion to Dismiss and Plaintiffs' Motion for a Preliminary Injunction. (Docket Nos. 49, 55.) ¹

II. Legal StandardA. Motion to Dismiss

A complaint will survive a motion to dismiss when it contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When considering a Rule 12(b)(6) motion, a court must “accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). Although a complaint need not include “detailed factual allegations,” it must offer “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Conclusory allegations or allegations that are no more than a statement of a legal conclusion “are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937. In other words, a pleading that merely offers “labels and conclusions,” a “formulaic recitation of the elements,” or “naked assertions” will not be sufficient to state a claim upon which relief can be granted. Id. at 678, 129 S.Ct. 1937 (citations and internal quotation marks omitted). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief.” Id. at 679, 129 S.Ct. 1937.

B. Motion for Preliminary Injunction

“[P]laintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest.” Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.2009) (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 29, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)).

III. Motion to Dismiss Analysis

After reviewing Interveners' motion to dismiss, the Court GRANTS dismissal of Plaintiffs' claim that ballot initiatives cannot, as a matter of law, implicate First Amendment rights, that state law preempts Measure B, and that Measure B violates Plaintiffs' due process rights (with the exception of Plaintiffs' Fourth Amendment claim). The Court DENIES dismissal on the remaining claims.

A. Standing

Interveners claim that Plaintiffs do not have standing. Standing is a “threshold question.” Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). The doctrine “is founded in concern about the proper—and properly limited role—of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The constitutional requirements of standing are:

(1) injury in fact, by which we mean an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.

Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663–664, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). Plaintiffs have the burden of showing they have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “[I]t is sufficient for standing purposes that the plaintiff intends to engage in a course of conduct arguably affected with a constitutional interest and that there is a credible threat that the challenged provision will be invoked against the plaintiff.” Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir.2003) (internal quotation marks and citations omitted) (emphasis added).² “Thus, when the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of standing.” Id. Even outside the First Amendment context, pre-enforcement standing is appropriate when the issue is a purely legal one and it would be costly to comply with the challenged law or regulation. See Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

Here, standing is appropriate. Vivid and Califa, collectively, make, produce, and distribute adult films, and their principle place of business is Los Angeles. (Compl. ¶¶ 8–9.) Plaintiffs Kross and Pierce perform in adult films produced Los Angeles. ( Id. ¶¶ 10–11.) On December 14, 2012, the Department sent a letter to the “Producers of Adult Films in Los Angeles County, indicating what steps the Department would take in implementing and enforcing Measure B.” (Docket No. 56 Ex. 1; see also Compl. ¶¶ 55, 61, 76, 89, 97.) Vivid has presented evidence that, as a result of Measurer B's passage, it has stopped shooting adult films in Los Angeles, and has thus lost the value of the non-Measure B filming permits for which it has already paid. (Hirsch Decl. ¶¶ 20–21.) ³Vivid has also presented evidence that filming outside Los Angeles creates several difficulties: performers are generally less available to film outside the County, fewer support services are available outside the County, and fewer suitable locations exist outside the County. ( Id. ¶¶ 28–32.) Moreover, Kross attests that she prefers to act with a partner not wearing a condom, for reasons that range from comfort to the message she wishes to portray, and she also attests that Measure B has reduced the number of roles in which she has had the opportunity to act. (Kross Decl. ¶¶ 9–11, 15.) Pierce makes similar attestations. (Pierce Decl. ¶¶ 7–11.) In light of the potential First Amendment concerns that Measure B implicates, the costs and consequences of complying with Measure B, and the County's expressed intent to enforce Measure B, Plaintiffs have standing to challenge it. Bayless, 320 F.3d at 1006;see also Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507 (...