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8 UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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12 DIAMOND S.J. ENTERPRISE, INC., Case No. 18-CV-01353-LHK

13 Plaintiff,

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY

14 v.

JUDGMENT AND DENYING

PLAINTIFF’S CROSS-MOTION FOR

15 THE CITY OF SAN JOSE, PARTIAL SUMMARY JUDGMENT 16 Defendant. Re: Dkt. Nos. 102, 103 17 18 Before the Court is Defendant City of San Jose’s motion for summary judgment, ECF No. 19 102, and Plaintiff Diamond S.J. Enterprise, Inc.’s cross-motion for partial summary judgment, 20 ECF No. 103. Both motions have been fully briefed. Having considered the submissions of the 21 parties, the relevant law, and the record in this case, the Court GRANTS Defendant’s motion for 22 summary judgment and DENIES Plaintiff’s cross-motion for partial summary judgment. 23 I. BACKGROUND 24 A. Factual Background 25 Defendant’s version of the facts is drawn from its request for judicial notice of the state 26 administrative record, ECF No. 102-1 (“RJN”). Plaintiff also asks the Court to adopt Defendant’s 27 1 1 statement of facts for purposes of summary judgment. Pl.’s Mot. at 1. A court “may take notice 2 of proceedings in other courts, both within and without the federal judicial system, if those 3 proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria 4 Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). The Court GRANTS 5 Defendant’s request for judicial notice. The Court also grants Plaintiff’s request that the Court 6 adopt Defendant’s statement of facts for purposes of the instant motions. 7 Plaintiff Diamond S.J. Enterprise, Inc. operates a nightclub called SJ Live, sometimes 8 referred to as Studio 8. The nightclub is owned by Jenny Wolfes, who also owns two other clubs. 9 Plaintiff’s patrons generally reserve tables and agree to purchase bottles of alcohol, referred to as 10 “table service” or “bottle service,” rather than paying in advance. 11 Daniel Embay, an event promoter, approached Wolfes to have her book an artist named 12 “Lucci,” whom Wolfes agreed to book for the evening of May 27, 2017. However, during the 13 event, Wolfes realized that Embay had collected money from some people in advance for table 14 service. Wolfes believed that Embay had “double-booked” tables, when Embay was not supposed 15 to book any tables at all. Wolfes responded by telling Embay, “We’re done.” Wolfes paid Embay 16 approximately $5,000, cancelled the entertainment, and asked Embay to leave. Embay then 17 threatened Wolfes in front of security guards. Wolfes soon closed the front door. 18 San Jose Police Officer Condon was later called to the scene to respond to a call reporting 19 that a shooting took place at approximately 1:30 a.m. Officer Condon learned that a man, later 20 identified as Embay, exited Plaintiff’s establishment, walked to his car, and retrieved a gun from 21 the trunk. Embay purportedly walked toward a group of approximately ten people with his gun, 22 and several people were seen ducking and running out of his way. Embay fired his gun multiple 23 times before he returned to his car and drove out of the parking lot. 24 Upon reviewing the footage, the San Jose Police Department noticed a number of security 25 violations. For example, the outside area of the club was not cleared once the club decided to 26 close its front door. Wolfes estimated that 40 to 50 people were in line when the doors were 27 2 1 closed. Wolfes explained that people who were told they would have a table that night became 2 angry once the doors closed, and they stormed the front door. Wolfes also acknowledged that she 3 had not secured an indemnification agreement with Embay prior to the event. 4 On July 17, 2017, the San Jose Police Chief issued a Notice of Intended Action to Revoke 5 Entertainment Permit to Plaintiff. Plaintiff requested an administrative hearing to review 6 Defendant’s intended revocation of SJ Live’s entertainment permit. On October 11, 2017, an 7 administrative hearing was held before deputy chief of police Mark Bustillos. On November 17, 8 2017, Bustillos issued a “Notice of and Decision on Intended Action to Revoke Entertainment 9 Permit, in which Defendant announced its decision to suspend SJ Live’s entertainment permit for 10 thirty days,” in lieu of completely revoking the entertainment permit. Bustillos found that Plaintiff 11 violated SJMC Chapter 6.60 by hiring an unlicensed promoter for whom Plaintiff was responsible 12 and by creating a public nuisance. 13 SJ Live then appealed the suspension to the Appeal Hearings Board, which held a hearing 14 on February 8, 2018. In its written decision mailed on February 26, 2018, the Board rejected the 15 administrative hearing’s finding regarding the hiring of an unlicensed promoter but upheld the 16 public nuisance charge. Thus, the Board affirmed the suspension of SJ Live’s entertainment 17 permit for 30 days. 18 B. Procedural History 19 On March 1, 2018, Plaintiff brought suit in this Court against Defendant. ECF No. 1. The 20 complaint was accompanied by an ex parte motion for a temporary restraining order. ECF No. 2. 21 The temporary restraining order was denied without prejudice on March 1, 2018. ECF No. 12. 22 On March 2, 2018, Plaintiff filed an amended motion for a temporary restraining order. ECF No. 23 15. That same day, the Court directed the Plaintiff to serve Defendant and ordered Defendant to 24 respond. ECF No. 18. On March 2, 2018, the Court denied Plaintiff’s amended motion for a 25 temporary restraining order. ECF No. 22. 26 On June 20, 2018, Plaintiff filed a first amended complaint (“FAC”). ECF No. 32. 27 3 1 Defendant filed its motion to dismiss and/or strike the FAC on July 20, 2018, ECF No. 37, which 2 the Court granted in part and denied as moot in part, ECF No. 51. 3 On November 28, 2018, Plaintiff filed a second amended complaint. ECF No. 54 4 (“Second Amended Complaint,” or “SAC”). The SAC alleges four claims for relief against 5 Defendant: (1) a claim under 42 U.S.C. § 1983 for violation of Plaintiff’s First Amendment rights, 6 pursuant to theories of overbreadth, vagueness, and prior restraint; (2) a claim under 42 U.S.C. § 7 1983 for violation of Plaintiff’s Fourteenth Amendment due process rights for impermissible 8 vagueness; (3) a claim under 42 U.S.C. § 1983 for violation of Plaintiff’s Fourteenth Amendment 9 due process rights to a fair hearing; and (4) a claim under the California Constitution for 10 interference with free speech and due process rights. Id. 11 On December 12, 2018, Defendant filed a motion to dismiss, for judgment on the 12 pleadings, and/or to strike the SAC. ECF No. 55. On July 1, 2019, the Court granted Defendant’s 13 motion in part and dismissed all of Plaintiff’s claims, with the exception of its First Amendment 14 claim based on theories of overbreadth and vagueness (“MTD Order”). ECF No. 82. On 15 September 5, 2019, the Court denied Plaintiff’s request to file a motion for reconsideration and 16 denied Plaintiff leave to amend the Second Amended Complaint. ECF No. 97. 17 On October 31, 2019, Defendant filed a motion for judgment on the pleadings, summary 18 judgment, and/or partial summary judgment, ECF No. 102 (“Def’s Mot.”). On November 14, 19 2019, Plaintiff filed an opposition, ECF No. 105 (“Opp’n to Def.’s Mot.”), and Defendant filed a 20 reply on November 21, 2019, ECF No, 107 (“Reply to Def’s Mot.). 21 Plaintiff filed a cross-motion for partial summary judgment, ECF No. 103 (“Pl.’s Mot.”). 22 On November 14, 2019, Defendant filed an opposition, ECF No. 104 (“Opp’n to Pl.’s Mot.”), and 23 Plaintiff filed a reply on November 21, 2019, ECF No. 107 (“Reply to Pl.’s Mot.”). Defendant 24 filed an amended opposition on November 22, 2019, ECF No. 108, which only added a sentence 25 to the table of contents. 26 In its opposition, Defendant objects to evidence cited by Plaintiff in support of Plaintiff’s 27 4 1 cross-motion for partial summary judgment. Specifically, Defendant objects to paragraphs 4, 8, 2 and 9 of the Declaration of Jenny Wolfes, ECF No. 103-1, on grounds of relevance and lack of 3 foundation. Opp’n to Pl.’s Mot. at 2. Defendant also objects to Plaintiff’s citations to its own 4 unverified complaint as evidence. Id. However, even considering the evidence to which 5 Defendant objects, the Court denies Plaintiff’s cross-motion for partial summary judgment and 6 grants Defendant’s motion for summary judgment, as explained below. Accordingly, the Court 7 overrules the objections as moot. 8 II. LEGAL STANDARD 9 A. Summary Judgment 10 Summary judgment is proper where the pleadings, discovery, and affidavits show that 11 there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as 12 a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of 13 the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a 14 material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 15 the nonmoving party. See id. 16 The party moving for summary judgment bears the initial burden of identifying those 17 portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue 18 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party 19 meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own 20 affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” 21 Fed. R. Civ. P. 56(e). If the nonmoving party fails to make this showing, “the moving party is 22 entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. 23 At the summary judgment stage, the Court must view the evidence in the light most 24 favorable to the nonmoving party: if evidence produced by the moving party conflicts with 25 evidence produced by the nonmoving party, the judge must assume the truth of the evidence set 26 forth by the nonmoving party with respect to that fact. See Santillan v. USA Waste of Cal., Inc., 27 5 1 853 F.3d 1035, 1043 n.8 (9th Cir. 2017). 2 B. First Amendment 3 1. Protected Speech 4 “The First Amendment applies to state laws and regulations through the Due Process 5 Clause of the Fourteenth Amendment.” Nat'l Ass'n for Advancement of Psychoanalysis v. 6 California Bd. of Psychology, 228 F.3d 1043, 1053 (9th Cir. 2000). Although the First 7 Amendment protects “the freedom of speech,” U.S. Const. amend I, its protections are not 8 limitless. The United States Supreme Court has distinguished between “restrictions on protected 9 expression,” which are subject to First Amendment scrutiny, and “restrictions on economic 10 activity or, more generally, on nonexpressive conduct,” which do not ordinarily implicate the First 11 Amendment’s protections. Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). 12 However, not every law can be easily categorized as either directed at protected expression 13 or directed at commerce or conduct because “every civil and criminal remedy imposes some 14 conceivable burden on First Amendment protected activities.” Arcara v. Cloud Books, Inc., 478 15 U.S. 697, 706 (1986). The First Amendment may be implicated where “‘speech’ and ‘nonspeech’ 16 elements are combined in the same course of conduct,” see United States v. O’Brien, 391 U.S. 17 367, 376 (1968), although merely “incidental burdens on speech” are not alone sufficient to trigger 18 First Amendment protections, Sorrell, 564 U.S. at 567. 19 Accordingly, to determine whether a governmental restriction on conduct with both 20 expressive and nonexpressive elements implicates the First Amendment, the “threshold question is 21 whether conduct with a ‘significant expressive element’ drew the legal remedy or the ordinance 22 has the inevitable effect of ‘singling out those engaged in expressive activity.’” Int’l Franchise 23 Ass’n, Inc. v. City of Seattle, 803 F.3d 389, 408 (9th Cir. 2015) (quoting Arcara, 478 U.S. at 706– 24 07). Put another way, a regulation does not implicate the freedom of expression unless 25 nonexpressive conduct “intimately related to expressive conduct” led the government to sanction 26 the plaintiff or the regulation uniquely impacts those engaged in expressive activity. Arcara, 478 27 6 1 U.S. at 706 n.3. “A court may consider the ‘inevitable effect of a statute on its face,’ as well as a 2 statute’s ‘stated purpose.’” Sorrell, 564 U.S. at 565. “However, absent narrow circumstances, a 3 court may not conduct an inquiry into legislative purpose or motive beyond what is stated within 4 the statute itself.” HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 685 (9th Cir. 5 2019) (citing O’Brien, 391 U.S. at 383 n.30). 6 2. Overbreadth 7 “A constitutional challenge based on overbreadth is a challenge to the facial validity of a 8 statute or regulation.” United States v. Szabo, 760 F.3d 997, 1003–04 (9th Cir. 2014). In an 9 overbreadth challenge, the litigant asserts that a governmental restriction reaches so broadly that it 10 deters expression protected by the First Amendment. See Schad v. Borough of Mount Ephraim, 11 452 U.S. 61, 65–66 (1981). “In the First Amendment context, the Court has permitted attacks on 12 overly broad statutes without requiring that the person making the attack demonstrate that in fact 13 his specific conduct was protected.” Bates v. State Bar of Ariz., 433 U.S. 350, 380 (1977). 14 However, given this exception to normal standing requirements, “there must be a realistic danger 15 that the statute itself will significantly compromise recognized First Amendment protections of 16 parties not before the Court.” Members of the City Council of City of L.A. v. Taxpayers for 17 Vincent, 466 U.S. 789, 801 (1984). Thus, “[t]he overbreadth doctrine is inapposite to a case in 18 which First Amendment protections are not implicated.” United States v. Dang, 488 F.3d 1135, 19 1142 (9th Cir. 2007). 20 “Because of the wide-reaching effects of striking down a statute on its face at the request 21 of one whose own conduct may be punished despite the First Amendment,” the United States 22 Supreme Court has “recognized that the overbreadth doctrine is ‘strong medicine’ and ha[s] 23 employed it with hesitation, and then ‘only as a last resort.’” Szabo, 760 F.3d at 1004 (quoting 24 L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38–40 (1999)). “[A] facial 25 freedom of speech attack must fail unless, at a minimum, the challenged statute ‘is directed 26 narrowly and specifically at expression or conduct commonly associated with expression.’” 27 7 1 Roulette v. City of Seattle, 97 F.3d 300, 305 (9th Cir. 1996). “[P]articularly where conduct and not 2 merely speech is involved, we believe that the overbreadth of a statute must not only be real, but 3 substantial as well, judged in relation to the statute's plainly legitimate sweep.” Broadrick v. 4 Oklahoma, 413 U.S. 601, 615 (1973). 5 3. Vagueness 6 The void-for-vagueness doctrine ordinarily raises due process concerns. See Nunez v. City 7 of San Diego, 114 F.3d 935, 940 (9th Cir. 1997). Specifically, due process requires an ordinance 8 to “(1) define the offense with sufficient definiteness that ordinary people can understand what 9 conduct is prohibited; and (2) establish standards to permit police to enforce the law in a non- 10 arbitrary, non-discriminatory manner.” Id. However, “when First Amendment freedoms are at 11 stake, courts apply the vagueness analysis more strictly, requiring statutes to provide a greater 12 degree of specificity and clarity than would be necessary under ordinary due process principles.” 13 Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1150 (9th Cir. 2001). As with First 14 Amendment overbreadth doctrine, First Amendment vagueness challenges seek to strike 15 restrictions that may chill protected speech. Id. “Uncertain meanings inevitably lead citizens to 16 steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly 17 marked.” Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972)). By contrast, 18 regulations of non-protected conduct, like “the economic behavior of businesses,” do not trigger a 19 heightened need for definiteness. Nunez, 114 F.3d at 940. 20 In a facial First Amendment vagueness challenge, “the ordinance need not be vague in all 21 applications if it reaches a substantial amount of constitutionally protected conduct.” Nunez, 114 22 F.3d at 940 (citing Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983)). Given the more stringent 23 review applicable to a First Amendment vagueness claim, a litigant may only raise such a claim in 24 a facial challenge where “the statute clearly implicates free speech rights.” Cal. Teachers Ass’n, 25 271 F.3d at 1149. 26 III. DISCUSSION 27 8 1 In Plaintiff’s only surviving cause of action, Plaintiff brings a claim under 42 U.S.C. § 2 1983 that alleges that Defendant’s city ordinances violated Plaintiff’s First Amendment rights to 3 free speech. SAC ¶¶ 52–66. Plaintiff’s claim originally comprised multiple theories of violations 4 under the First Amendment doctrines of prior restraint, overbreadth, and vagueness. Id. Because 5 the Court dismissed with prejudice Plaintiff’s theory that the challenged ordinances impose an 6 impermissible prior restraint on speech, see MTD Order 10–31, the only two First Amendment 7 theories remaining are based on overbreadth and vagueness. See Def.’s Mot. at 8 (citing ECF No. 8 102-2 (“Zoglin Decl.”), Exs. G, I). Plaintiff’s claim alleges that San Jose Municipal Code Chapter 9 6.60, which regulates public entertainment businesses, and Chapter 6.62, which regulates event 10 promoters, are overbroad and vague, and thus violate Plaintiff’s First Amendment rights to free 11 speech. The Court addresses Plaintiff’s claims as to each Chapter in turn. 12 A. SJMC Chapter 6.60 13 SJMC Chapter 6.60 of the San Jose Municipal Code requires certain public entertainment 14 businesses to obtain a valid permit from Defendant and sets forth the permitting scheme. Section 15 6.60.028 defines “public entertainment” to include dancing, singing, entertainment that includes 16 audience participation, or live entertainment. Section 6.60.030 defines a “public entertainment 17 business” to be “a business open to the public where alcohol is sold on the premises, the premises 18 has a maximum occupant load that exceeds one hundred persons, . . . and where one or more 19 public entertainment activities are also provided or allowed.”1 Chapter 6.60. Id. § 6.60.040. 20 As to SJMC Chapter 6.60, Defendant moves for summary judgment with respect to 21 Plaintiff’s claim that section 6.60.240 violates its First Amendment rights. Def’s Mot. at 9–11. 22 Defendant also moves for summary judgment with respect to Plaintiff’s claim that sections 23 6.60.290, 6.60.370(L), and 6.60.383(F) (collectively, the “Nuisance Provisions”) violate Plaintiff’s 24 First Amendment rights. Def’s Mot. at 11–19. Plaintiff moves for partial summary judgment that 25

26 1 The provision does not apply to “taverns, bars, lounges, cocktail lounges and other drinking establishments” where “no other public entertainment is provided or allowed.” SJMC § 27 6.60.030(B). 9 1 Chapter 6.60 in its entirety violates Plaintiff’s First Amendment rights. Pl.’s Mot. at 4–14. The 2 Court first considers section 6.60.240, then the Nuisance Provisions, and finally, Chapter 6.60 as a 3 whole. 4 1. SJMC section 6.60.240 5 Plaintiff claims that section 6.60.240 violates the First Amendment because the section is 6 both overbroad and vague as applied to Plaintiff. Opp’n to Def.’s Mot. at 4. Defendant argues 7 that Plaintiff’s challenges to section 6.60.240 fail because the Court’s MTD Order already found 8 that section 6.60.240 does not implicate the First Amendment. Def.’s Mot. at 9–11. The Court 9 agrees that section 6.60.240 does not implicate the First Amendment, and therefore need not 10 consider whether the ordinance is overbroad or vague. 11 SJMC section 6.60.240 is a provision requiring permitted public entertainment businesses 12 to make certain arrangements for security. Section 6.60.240 states in part: “[t]he permittee shall 13 comply with, and ensure that the permittee’s owners, managers and employees comply with the 14 standards for internal and external security arrangements specified below.” The ordinance then 15 lists ten requirements for security personnel at a permitted business, such as: “There shall be a 16 minimum of one security personnel on duty for up to and including the first fifty patrons on site. 17 Once the number of patrons exceeds fifty, there shall be an additional one security personnel on 18 duty for up to and including every additional fifty patrons on site.” SJMC § 6.60.240(A)(1). 19 Plaintiff’s First Amendment challenges to this provision fail because section 6.60.240 does 20 not implicate the First Amendment. In fact, the Court squarely held in its MTD Order that section 21 6.60.240 is “not an ordinance that implicates any First Amendment rights.” MTD Order at 27. 22 The Court so held because “[t]here is no plausible way to read SJMC section 6.60.240 to implicate 23 expressive activity, as the ordinance purely regulates the provision of security at permitted 24 businesses.” The Court likened the security provision to the Seattle minimum wage ordinance 25 upheld by the Ninth Circuit in International Franchise, which the Ninth Circuit explained was 26 “plainly an economic regulation that does not target speech or expressive conduct.” 803 F.3d at 27 10 1 408. The Court is “generally preclude[d]” by law-of-the-case doctrine “from reconsidering an 2 issue decided previously by the same court or by a higher court in the identical case.” Hall v. City 3 of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). Thus, as Defendant notes, the Court’s prior 4 holding that section 6.60.240 does not implicate the First Amendment “applies equally to 5 Plaintiff’s overbreadth and vagueness claims” based on the First Amendment. Reply to Def.’s 6 Mot. at 1. The Court accordingly GRANTS Defendant’s motion for summary judgment with 7 respect to Plaintiff’s claim that section 6.60.240 violates Plaintiff’s First Amendment rights. 8 2. SJMC sections 6.60.290, 6.60.370(L), and 6.60.383(F) 9 Plaintiff calls SJMC §§ 6.60.290, 6.60.370(L), and 6.60.383(F) the “Nuisance Provisions,” 10 SAC at ¶ 62, and the Court will do the same. Because the Nuisance Provisions operate similarly to 11 prohibit public entertainment permittees from conducting its business in a manner that creates a 12 public nuisance, the Court addresses them together. 13 Plaintiff argues that the Nuisance Provisions violate Plaintiff’s First Amendment rights 14 because the Nuisance Provisions are overbroad and vague. Opp’n to Def.’s Mot. at 8–15. 15 Defendant argues that the Nuisance Provisions do not implicate the First Amendment and that, 16 even if they did, they are not impermissibly overbroad or vague. Def.’s Mot. at 9–18. The Court 17 agrees that the Nuisance Provisions do not implicate the First Amendment and thus need not 18 decide whether the Nuisance Provisions are overbroad or vague. 19 The Nuisance Provisions prohibit public entertainment businesses from operating in a 20 manner that creates a public nuisance. Specifically, SJMC section 6.60.290 states: 21 The permittee shall not conduct the permitted business in a manner that creates or results in a public nuisance, as defined in Section 1.13.050 of this code or Sections 22 3479 and 3480 of the California Civil Code, on or within one hundred fifty (150) feet of the permitted premises. 23 Similarly, SJMC section 6.60.370(L) states: 24 An application for an entertainment permit or entertainment license shall be denied, 25 and an entertainment permit or entertainment license issued pursuant to this title may be suspended or revoked by the chief of police upon any of the following grounds: . 26 . . . 27 11 The Applicant, licensee or permittee has conducted the public entertainment 1 business, in a manner that creates or results in a public nuisance, as defined in Section 1.13.050 of this code or Sections 3479 and 3480 of the California Civil Code, on or 2 within one hundred fifty feet of the premises . . . . 3 Finally, SJMC section 6.60.383(F) states: 4 An application to renew an entertainment permit or entertainment license shall be denied by the chief of police upon any of the following grounds: . . . . 5 The premises or the public entertainment business has been the subject of an 6 administrative, civil or criminal nuisance abatement action and court judgment or administrative determination finding the premises or the public entertainment 7 business to be a nuisance within the past five years . . . . 8 The Nuisance Provisions therefore prohibit a permitted public entertainment business from 9 operating in a manner that creates a public nuisance, at the risk of suspension, revocation, or 10 denial of its permit. 11 Sections 6.60.290 and 6.60.370(L) explicitly reference the following other laws to define 12 “public nuisance”: SJMC section 1.13.050, and California Civil Code sections 3479 and 3480. 13 First, SJMC section 1.13.050 lists 15 behaviors—for instance, drinking alcoholic beverages in 14 public, public urination, and prostitution—as examples of public nuisances, and also states that a 15 public nuisance is the “maintenance or use of property in the city in a manner that jeopardizes or 16 endangers the health, safety or welfare of persons on the premises or in the surrounding area . . . .” 17 Second, California Civil Code section 3479 states: 18 Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to 19 the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, 20 of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance. 21 Finally, California Civil Code section 3480 states that a “public nuisance is one which affects at 22 the same time an entire community or neighborhood, or any considerable number of persons, 23 although the extent of the annoyance or damage inflicted upon individuals may be unequal.” 24 The Court finds that the Nuisance Provisions do not implicate Plaintiff’s First Amendment 25 rights because they regulate non-expressive conduct, not speech. See Arcara, 478 U.S. at 706. 26 The Nuisance Provisions prohibit Plaintiff from “conduct[ing] the permitted business in a manner 27 12 1 that creates or results in a public nuisance.” SJMC §§ 6.60.290 (emphasis added); see also 2 6.60.370(L). Plaintiff makes no argument that conduct creating a public nuisance is itself 3 expressive. See Opp’n to Def.’s Mot. at 8–10. Thus, because the Nuisance Provisions clearly 4 impose “restrictions on economic activity or, more generally, on nonexpressive conduct,” they are 5 distinct from restrictions on protected expression and do not implicate the First Amendment. See 6 Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). 7 Plaintiff attempts to get around this result by arguing that the Nuisance Provisions target 8 “expressive business[es].” See Opp’n to Def.’s Mot. at 9. Plaintiff contends that the Nuisance 9 Provisions are “part of a licensing scheme that singles out expressive activity, public 10 entertainment, and subjects those who wish to provide public entertainment to the unique burden 11 of applying for and maintaining a public entertainment permit.” Id. Thus, under Plaintiff’s 12 argument, the ordinance implicates the First Amendment because it “has the inevitable effect of 13 ‘singling out those engaged in expressive activity.’” Int’l Franchise Ass’n, Inc., 803 F.3d at 408 14 (quoting Arcara, 478 U.S. at 706–07). 15 In Arcara, the United States Supreme Court cited Minneapolis Star as an example of a 16 statute “singling out those engaged in expressive activity.” Arcara, 478 U.S. at 706–07 (citing 17 Minneapolis Star& Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575 (1983)). The statute 18 at issue in Minneapolis Star imposed a “‘use tax’ on the cost of paper and ink products consumed 19 in the production of a publication.” Minneapolis Star, 460 U.S. at 577. The United States 20 Supreme Court found that the “special use tax . . . is without parallel in the State’s tax scheme” 21 because the tax departed from “the ordinary rule in Minnesota,” which was to “tax only the 22 ultimate, or retail, sale rather than the use of components like ink and paper.” Id. at 581–82. The 23 United States Supreme Court concluded that “Minnesota has singled out the press for special 24 treatment.” Id. at 582. Accordingly, the United States Supreme Court found that the First 25 Amendment was implicated and proceeded to evaluate whether the special tax could withstand 26 First Amendment scrutiny. Id. 27 13 1 In light of this precedent, the Court cannot agree that the Nuisance Provisions here have 2 the effect of singling out those engaged in expressive activity. Although Plaintiff is correct that 3 the Nuisance Provisions are incorporated into the public entertainment permitting scheme, 4 Plaintiff concedes that “California and San Jose’s nuisance laws . . . apply to all businesses.” 5 Opp’n to Def’s Mot. at 9. Moreover, title 6 of the San Jose Municipal Code explicitly subjects a 6 multitude of non-expressive businesses, such as bingo and retail businesses, to the same or similar 7 nuisance provisions as a condition for a permit or license. See, e.g., SJMC § 6.16.120 (permit for 8 bingo subject to nuisance conditions); § 6.87.455 (license for tobacco retail subject to nuisance 9 conditions); § 6.88.330 (registration for cannabis business subject to nuisance conditions). In fact, 10 every single license or permit set forth in Title 6 of the San Jose Municipal Code, “Business 11 Licenses and Regulations,” is generally subject to “[d]enial, suspension or revocation” for conduct 12 “that creates or results in a public nuisance, as defined in Section 1.13.050 of this Code or 13 Sections 3479 and 3480 of the California Civil Code, on or within one hundred fifty feet of the 14 licensed or permitted premise.” SJMC § 6.02.130. These ubiquitous nuisance conditions are thus 15 worlds apart from the special use tax applied only to the press in Minneapolis Star, which the 16 United States Supreme Court found to be “without parallel” in the state’s tax scheme. Id. at 582. 17 The Court concludes that the Nuisance Provisions regulate nonexpressive conduct and do 18 not “single out those engaged in expressive activity.” See Arcara, 478 U.S. at 706–07. As such, 19 the Nuisance Provisions do not implicate the First Amendment as a matter of law, and the Court 20 GRANTS Defendant’s motion for summary judgment as to SJMC sections 6.60.290, 6.60.370(L), 21 and 6.60.383(F). 22 3. SJMC Chapter 6.60 as a whole 23 SJMC Chapter 6.60 sets forth the overall permitting framework for public entertainment 24 businesses. Plaintiff argues that SJMC Chapter 6.60 violates Plaintiff’s First Amendment rights 25 because the permitting framework is overbroad. See Pl. Mot. at 5–14. Plaintiff asks the Court to 26 consider a facial challenge to Chapter 6.60 in its totality, rather than piecemeal by subsection, 27 14 1 because “[o]ne cannot simply look at the subsections and reason that because an individual 2 element is not directed at expressive activity, the particular subsection does not warrant First 3 Amendment scrutiny.” Id. at 7. In Plaintiff’s reply in support of its motion for partial summary 4 judgment, Plaintiff clarifies that it does not seek as a remedy enjoinment of the entirety of Chapter 5 6.60, but rather relief from the Nuisance Provisions. Reply to Pl.’s Mot. at 7. However, because 6 Plaintiff’s arguments are based on the permitting scheme as a whole, the Court considers 7 separately whether the scheme as a whole violates the First Amendment. The Court finds that 8 Plaintiff’s arguments are both foreclosed by the Court’s prior rulings and are unsupported by First 9 Amendment precedent. 10 First, the Court has already rejected Plaintiff’s First Amendment claims based on the 11 theory that the ordinances at issue impose an impermissible prior restraint on speech. MTD Order 12 10–31. As Plaintiff concedes, its arguments that SJMC Chapter 6.60 is facially overbroad 13 “invariably include discussions and citations that discuss the concept of prior restraint.” Pl.’s Mot. 14 at 5. Plaintiff further acknowledges that “[c]ourts consistently refer” to theories of overbreadth 15 “as prior restraints.” Id. Nonetheless, Plaintiff attempts to repackage its arguments that the 16 licensing scheme constitutes an impermissible prior restraint “with no disrespect intended to the 17 Court or its prior ruling.” Id. Plaintiff offers no reason why the Court should revisit its dismissal 18 of Plaintiff’s prior restraint theories; moreover, those findings are binding law of the case. See 19 Hall, 697 F.3d at 1067. 20 Furthermore, Plaintiff has failed to establish that Chapter 6.60 even implicates the First 21 Amendment. The Court concluded above that none of the specific sections of Chapter 6.60 that 22 Plaintiff identified implicate Plaintiff’s First Amendment rights. See supra Sections III.A.1–2. 23 Plaintiff’s theory that Chapter 6.60 operates as a whole to regulate “pure speech” is likewise 24 unpersuasive. Plaintiff argues that Chapter 6.60 regulates speech because Chapter 6.60 defines 25 “public entertainment” as “dancing, singing, audience participation in the entertainment, or live 26 entertainment,” Pl.’s Mot. at 5 (quoting SJMC § 6.60.040), and because such activity is expression 27 15 1 protected by the First Amendment, id. (citing Cinevision Corp. v. Burbank, 745 F.2d 560, 567 (9th 2 Cir. 1984) (holding that music and other forms of entertainment are forms of expression protected 3 by the First Amendment)). 4 However, Plaintiff’s overemphasis on Defendant’s definition of “public entertainment” 5 misses the mark. Chapter 6.60 does not directly regulate “public entertainment,” but instead 6 regulates “public entertainment businesses,” which is “a business open to the public where alcohol 7 is sold on the premises, the premises has a maximum occupant load that exceeds one hundred 8 persons, . . . and where one or more public entertainment activities are also provided or allowed.” 9 SJMC § 6.60.030. The permitting scheme set forth in Chapter 6.60 amounts to “restrictions on 10 economic activity or, more generally, on nonexpressive conduct,” which are distinct from 11 expression protected by the First Amendment. Sorrell v. IMS Health Inc., 564 U.S. 552, 567 12 (2011). 13 Ninth Circuit precedent has similarly held that these types of business regulations do not 14 implicate the First Amendment, even when businesses may generally engage in protected 15 expression. In International Franchise, the plaintiff brought a First Amendment challenge to 16 Seattle’s minimum wage ordinance as it pertained to franchised businesses because “two of the 17 three definitional criteria for franchises are based on speech and association.” 803 F.3d at 408. 18 However, the Ninth Circuit squarely rejected the plaintiff’s claim that the First Amendment was 19 implicated by Seattle’s ordinance because the ordinance “is plainly an economic regulation that 20 does not target speech or expressive conduct.” Id. In the instant case, the requirements of Chapter 21 6.60 are tantamount to “economic regulation[s],” id., because the regulations govern business 22 aspects of maintaining a public entertainment business, such as regulations on security personnel, 23 SJMC § 6.60.240; indemnification and insurance, § 6.60.210; and on-site managers, § 6.60.255. 24 Further, Chapter 6.60 “do[es] not target speech or expressive conduct.” Int’l Franchise, 25 803 F.3d at 408. Defendant imposes the same or similar licensing requirements broadly to 26 businesses that include automobile dismantlers, SJMC Chapter 6.14; ice cream trucks, SJMC 27 16 1 Chapter 6.39; and junk dealers, SJMC Chapter 6.42. As in International Franchise, “the 2 ordinance applies to businesses that have adopted a particular business model, not to any message 3 the businesses express.” 803 F.3d 389. Here, Plaintiff’s decision to operate a venue that serves 4 alcohol and accommodates over one hundred patrons triggers the permitting requirements, and 5 Plaintiff is free to adopt other business models, such as discontinuing the service of alcohol, to 6 avoid the need for a permit. Opp’n to Pl.’s Mot. at 4; see SJMC § 6.60.040. 7 The Court concludes that summary judgment in favor of Defendant is therefore appropriate 8 as to Plaintiff’s claim that the entirety of Chapter 6.60 violates its First Amendment rights. The 9 Court previously dismissed Plaintiff’s First Amended Complaint in part because Plaintiff failed to 10 allege “which subparts of [SJMC Chapter 6.60] violate the First Amendment.” ECF No. 51 at 10. 11 In so doing, the Court admonished Plaintiff to base its claims on particular code sections. Id. 12 Plaintiff then filed a Second Amended Complaint that specified which sections of the San Jose 13 Municipal Code Plaintiff alleged violated the First Amendment. See SAC ¶¶ 52–66. Accordingly, 14 Defendant moved for summary judgment as to those specific sections and did not move for 15 summary judgment as to the entirety of SJMC Chapter 6.60. Despite the Court’s instruction to 16 base its First Amendment claims on particular sections, Plaintiff moved for partial summary 17 judgment on the ground that “Chapter 6.60 [is] overbroad on its face.” Pl.’s Mot. at 1. 18 Nonetheless, as explained above, Plaintiff’s claim that Chapter 6.60 viewed as a whole violates the 19 First Amendment fails as a matter of law. “[W]here the party moving for summary judgment has 20 had a full and fair opportunity to prove its case, but has not succeeded in doing so, a court may 21 enter summary judgment sua sponte for the nonmoving party.” Albino v. Baca, 747 F.3d 1162, 22 1176 (9th Cir. 2014). Because the Court holds that SJMC Chapter 6.60 does not implicate the 23 First Amendment as a matter of law, the Court GRANTS summary judgment in favor of 24 Defendant as to this claim. 25 B. SJMC Chapter 6.62 26 SJMC Chapter 6.62 sets forth a permitting scheme for event promoters, which Defendant 27 17 1 generally defines as promoters of “public entertainment” activities subject to Chapter 6.60. 2 As to SJMC Chapter 6.62, Defendant moves for summary judgment with respect to 3 Plaintiff’s claim that sections 6.62.050 and 6.62.360(B) violate its First Amendment rights. Def’s 4 Mot. at 19–24. Plaintiff moves for partial summary judgment that Chapter 6.62, as a whole, 5 violates its First Amendment rights. Pl.’s Mot. at 14–21. The Court first considers section 6 6.62.040, section 6.62.360(B), and, finally, Chapter 6.62 as a whole. 7 1. SJMC section 6.62.040 8 Plaintiff argues that SJMC section 6.62.040, which provides the definition of an “event 9 promoter,” violates Plaintiff’s First Amendment rights because the section is vague and overbroad. 10 Defendant moves for summary judgment on the grounds that this section, which merely defines 11 who Defendant considers to be an “event promoter,” does not implicate the First Amendment. 12 The Court agrees that section 6.62.040 does not implicate the First Amendment and thus need not 13 consider whether the section is overbroad or vague. 14 SJMC section 6.62.040 defines “event promoter” as any person who: 15 1. Is directly or indirectly responsible for the promotion of an event as evidenced by activities such as, but not limited to contracting with the principals, selecting 16 entertainment, advertising or otherwise holding out the event to members of the general public, inviting participants to the event, renting or controlling the event site, 17 or serving as a designated on-site representative while the event is occurring as provided in Section 6.62.350 of this chapter; and 18 2. In exchange for engaging in the promotion of the event, as described in Section 19 6.62.040A.1., directly or indirectly receives or shares in any of the following: 20 a. Admission or entrance fees paid by participants or spectators; 21 b. Compensation, consideration or other revenue from sponsors, private donors or managers and/or owners of the event site; or 22 c. Revenues from concessions or other sales at the event. 23 As evident from the face of this section, this definition in and of itself does not impose any 24 restrictions whatsoever. Plaintiff makes no argument that this section itself imposes any 25 restrictions on protected expression, but rather argues that “if a person desires to promote live 26 entertainment, he or she must obtain a promoter license and in turn must comply with all the 27 18 1 provisions of § 6.62.” Opp’n to Def.’s Mot. at 15. Plaintiff thus concedes that section 6.62.040 2 itself does not impose any restrictions on protected expression. 3 Because section 6.62.040 does not impose any “restrictions on protected expression,” the 4 Court finds that this section does not implicate the First Amendment as a matter of law. See 5 Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). Accordingly, the Court GRANTS 6 Defendant’s motion for summary judgment as to Plaintiff’s First Amendment claim based on 7 section 6.62.040. 8 2. SJMC section 6.62.360(B) 9 Plaintiff argues that SJMC section 6.62.360(B) violates Plaintiff’s First Amendment rights 10 because the section is vague and overbroad. Defendant moves for summary judgment on the 11 grounds that section 6.62.360(B) does not implicate the First Amendment, and because the section 12 is not otherwise overbroad or vague. The Court agrees that section 6.62.360(B) does not implicate 13 the First Amendment, and therefore need not address whether the section is overbroad or vague. 14 On its face, section 6.62.360(B) does not contain any restrictions on any expression 15 protected by the First Amendment. SJMC section 6.62.360(B) states: 16 Each event promoter, and any other persons responsible for the operation of the event site, excluding the city, its agents, officers and employees, shall be jointly and 17 severally liable for: 18 1. Any violation of this chapter; 19 2. Any violation of any other license or permit required by the event; and 20 3. Any violation of any other applicable law that arises out of the promotion of the event. 21 Plaintiff presents no argument that section 6.62.360(B) regulates speech. Instead, Plaintiff merely 22 incorporates by reference Plaintiff’s argument that it is a public entertainment business and enjoys 23 First Amendment rights. See Opp’n to Def.’s Mot. at 19. 24 In its MTD Order, the Court acknowledged that “the existence of a First Amendment right 25 for event promoters is not in doubt,” but that such a conclusion does not establish that every 26 restriction on an event promoter automatically impinges First Amendment rights. MTD Order at 27 19 1 15–16. In response, Plaintiff merely states that, “[i]f an event promoter violates any provision of 2 the event promoter licensing scheme set forth in § 6.62, the promoter and any public entertainment 3 permittee who engages them can have their license suspended or revoked.” Opp’n to Def.’s Mot. 4 at 19. Again, this reasoning concedes that Chapter 6.62 generally and provisions therein are the 5 source of any restrictions, not section 6.62.360(B) itself. Plaintiff has failed to identify a single 6 restriction on protected expression in section 6.62.360(B) itself. 7 Because section 6.62.360(B) itself does not impose any “restrictions on protected 8 expression,” the Court finds that the section does not implicate the First Amendment as a matter of 9 law. See Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). Accordingly, the Court GRANTS 10 Defendant’s motion for summary judgment as to Plaintiff’s First Amendment claims based on 11 section 6.62.360(B). 12 3. SJMC Chapter 6.62 viewed as a whole 13 Plaintiff argues that Chapter 6.62, the permitting scheme for event promoters, is 14 unconstitutional as a whole because the Chapter implicates the First Amendment and because the 15 Chapter’s framework fails to establish a time limit in which the permit must be processed as 16 required by the First Amendment. Pl.’s Mot. at 14–17. Defendant argues that this theory is not 17 properly before the Court and that Chapter 6.60 does not otherwise implicate the First 18 Amendment. Opp’n to Pl.’s Mot. at 11–16. Defendant also argues that Plaintiff lacks standing to 19 assert this theory. Id. at 16. Because the Court finds that the theory is not properly before the 20 Court, the Court need not consider whether Chapter 6.62 implicates the First Amendment nor 21 whether Plaintiff lacks standing to pursue this theory. 22 The Court finds that Plaintiff’s timing theory did not survive the Court’s MTD Order. 23 First, there is no allegation in the Second Amended Complaint or identified by Plaintiff in the 24 interrogatories that identifies the timing of the permitting application process as constitutionally 25 defective. Specifically, Plaintiff now moves for partial summary judgment as to Chapter 6.62 on 26 the grounds that “it does not require the Chief of Police to process applications for event promoter 27 20 1 permits within a brief, specified, and reasonably prompt period of time.” Pl.’s Mot. at 14–15. Yet 2 the only allegation in the Second Amended Complaint in which Plaintiff discussed the timing of 3 the permitting process was at paragraph 55, which was stricken by the Court. Paragraph 55 stated: 4 The permitting scheme set forth in Chapter § 6.62 requires promoters to be licensed but lacks a specified time for issuing such licenses and is therefore unconstitutional 5 on its face. Specifically, SJMC § 6.62.410 inserts procedures for issuing other forms of permits and licenses into the promoter scheme. Those procedures set forth at 6 SJMC § 6.02.110, do not contain a specific and reasonable time for making a determination on an application. Accordingly, SJMC § 6.62.410 renders the entirety 7 of SJMC § 6.62 unenforceable. 8 SAC ¶ 55. Paragraph 55 cited section 6.62.410, which is an indemnification provision that states: 9 Any person applying for an event promoter permit shall agree to fully indemnify, defend and hold harmless the city, its officers, employees and agents for all claims, 10 losses, or liabilities that arise out of the issuance or use of the event promoter permit or any event promoted pursuant to the permit, in a form approved by the city 11 attorney's office. Section 6.62.410 thus has nothing to do with the timing of the permitting process. See id. In its 12 opposition to Defendant’s motion to dismiss, Plaintiff in fact conceded that paragraph 55 was 13 deficient because Plaintiff erroneously discussed section 6.62.410 instead of the correct provision, 14 section 6.62.400. MTD Order at 30. Thus, the Court’s MTD Order struck this paragraph from the 15 Second Amended Complaint. Id. Plaintiff moved for reconsideration of the Court’s MTD Order 16 and for leave to amend on entirely different issues six days before the close of fact discovery, see 17 ECF No. 92, which the Court denied, ECF No. 97. Plaintiff’s request for reconsideration and 18 leave to amend did not raise paragraph 55 or Plaintiff’s permitting process timing claim at all. See 19 ECF No. 92. Thus, the Second Amended Complaint remains the operative complaint and does not 20 contain any allegations regarding the timing of the permitting process. 21 Similarly, in Plaintiff’s interrogatory responses that purported to identify all provisions that 22 Plaintiff contended to be overbroad, Plaintiff failed to identify any provision relevant to the timing 23 of the permitting process (e.g., SJMC sections 6.02.110, 6.62.400). Opp’n to Pl.’s Mot. at 13 24 (citing Zoglin Decl., Ex. G at 9–17). Plaintiff argues that Defendant was not prejudiced by 25 Plaintiff’s omission of the timing of the permitting process theory from Plaintiff’s interrogatory 26 responses. Reply to Pl.’s Mot. at 8. Plaintiff cites a decades-old, out-of-district case to argue that 27 21 1 “answers to interrogatories . . . do not limit proof.” Id. (citing Clark v. Everett Assocs., Inc., No. 2 SA CV 97-351-GLT(EEx), 1998 U.S. Dist. LEXIS 22259, at *4-5 (C.D. Cal. Oct. 26, 1998)). 3 Plaintiff’s argument is beside the point. Plaintiff is not presenting new proof in its motion for 4 summary judgment. Instead, Plaintiff is presenting an unpleaded theory of liability. In the Ninth 5 Circuit, “adding a new theory of liability at the summary judgment stage would prejudice the 6 defendant,” and courts may decline to consider new theories during summary judgment. Coleman 7 v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000). Plaintiff failed to properly plead its 8 timing theory in the Second Amended Complaint and failed to identify in Plaintiff’s interrogatory 9 responses that Plaintiff would pursue this theory of liability. The Court therefore declines to 10 consider this new theory during summary judgment. 11 Moreover, Plaintiff’s arguments about the lack of a timing requirement for the permit 12 process are based on its “prior restraint” theory, which the Court dismissed in its entirety. See 13 MTD Order at 10–31. As Defendant argues, Plaintiff relies almost entirely on prior restraint cases 14 to argue that the First Amendment requires a reasonable time limit for issuance of the permit. 15 Opp’n to Pl.’s Mot. at 14. For example, Plaintiff relies primarily upon FW/PBS, a case 16 considering a licensing scheme “regulating sexually oriented businesses. FW/PBS, Inc. v. City of 17 Dallas, 493 U.S. 215, 226 (1990). The United States Supreme Court struck down the licensing 18 scheme because “a prior restraint that fails to place limits on the time within which the 19 decisionmaker must issue the license is impermissible.” Id. at 226. Similarly, Plaintiff repeatedly 20 discusses prior restraint cases to argue that Chapter 6.60 is unconstitutional on its face. See, e.g., 21 Freedman v. Maryland, 380 U.S. 51 (1965) (motion picture censorship statute held 22 unconstitutional prior restraint due to lack of timing requirement); Clark v. City of Lakewood, 259 23 F.3d 996 (9th Cir. 2001) (adult business licensing scheme subject to facial challenge as a prior 24 restraint due to lack of standards to govern discretion); Baby Tam & Co., Inc. v. City of Las Vegas, 25 154 F.3d 1097 (9th Cir. 1998) (licensing scheme to operate adult bookstore unconstitutional prior 26 restraint due to timing requirement), abrogated on other grounds as recognized in Dream Palace 27 22 1 v. County of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004). In short, Plaintiffs claim relies 2 almost entirely on its prior restraint theory, which the Court dismissed. See MTD Order at 10-31. 3 Accordingly, because the Court has stricken or otherwise dismissed all of the allegations 4 || that could support Plaintiff's theory that Chapter 6.62 violates its First Amendment rights, the 5 Court concludes that this theory is no longer properly before the Court. Accordingly, the Court 6 || DENIES Plaintiff's motion for summary judgment as to Chapter 6.62. 7 C. Defendant’s Remaining Arguments 8 As an alternative theory supporting summary judgment, Defendant also argues that res 9 || judicata precludes Plaintiff’s First Amendment claim. Def.’s Mot. at 24-25. Defendant also 10 || moves for judgment on the pleadings on the basis that Plaintiff fails to meet the pleading 11 requirements of Fed. R. Civ. P. 8. Id. at 17, 19, 21, 24. Because the Court grants summary 12 || judgment in favor of Defendant with respect to all of Plaintiff's remaining claims, the Court need 5 13 not reach these arguments. |l Iv. CONCLUSION 3 15 For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED. a 16 || Additionally, the Court GRANTS summary judgment in favor of Defendant as to Plaintiff's First 3 17 Amendment theory that Chapter 6.60 violates its First Amendment rights. 18 Plaintiffs cross-motion for partial summary judgment is DENIED. 19 || ITISSO ORDERED. 20 21 Dated: December 30, 2019 22 facy i ef \

LUCY @. KOH

23 United States District Judge 24 25 26 23 28 Case No. 18-CV-01353-LHK

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S