Recreational Developments v. City of Phoenix

MEMORANDUM **

Owners and patrons of social clubs catering to the “swinger lifestyle” (“the Clubs”) and in which patrons engage in or view sexual acts brought this action challenging the constitutionality of ordinance G-4145 of appellee City of Phoenix (“the City”) that bans such conduct. The district court entered summary judgment in favor of the City and the Clubs appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

We first note that the Clubs have waived any challenge to the district court’s decision on the constitutionality of the City’s ordinance. The Clubs mentioned the constitutional issues only in passing in their opening brief, and conceded at oral argument that they chose to focus their arguments on the district court’s evidentiary rulings. The mere mention of an issue is not sufficient to preserve that issue on appeal, see Arpin v. Santa Clam Valley Transp. Agency, 261 F.3d 912 , 919 (9th Cir.2001), and we therefore do not address the constitutional issues.

The district court did not abuse its discretion in excluding the “expert” testimony of Dr. Scherzer and Mr. Gould. Trial courts have broad latitude both in deciding how to test a…