The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
-Before the Court is Defendant City of Sacramento's (the "City") Motion to Dismiss and Strike Plaintiffs' First Amended Complaint (ECF No. 23) ("MTD").*fn1 For the reasons that follow, the Motion is GRANTED without leave to amend.
Plaintiffs "Occupy Sacramento" -- which is an unincorporated association aligned with the "Occupy Wall Street" movement -- as well as individual members of Occupy Sacramento, allege that since the first week of October 2011 they have been assembling and associating in Sacramento's Cesar Chavez Plaza Park ("the Park") for the purpose of engaging in political expression.*fn3
(First Amended Complaint ("FAC"), ECF No. 9 ¶¶ 3, 4, 6-9.) Plaintiffs state that they have chosen to assemble in the Park because "it is central to public transportation, symbolically located opposite City Hall and because it is the historic site for peaceable assemblies and free speech." (Id. at ¶ 9.) They desire to assemble and to communicate on a continuous basis, around the clock on a twenty-four hour a day basis for an indefinite period of time. (Id. at ¶ 10.) Specifically, Plaintiffs argue that a continuous presence in the Park is necessary both to communicate their message to people in the local area, as well as to communicate with other "Occupy" groups across the country and around the world. (Id. at ¶¶ 9-10.)
Plaintiffs contend that Sacramento City Code § 12.72.090 prohibits themselves and others from remaining in the Park after 11:00 p.m. and before 5:00 a.m. each weekday, and after midnight and before 5:00 a.m. on weekends. (Id. at ¶ 11.) They reproduce § 12.72.090 in full, which provides:
12.72.090 Remaining or loitering in parks during certain hours prohibited.
A. No person shall remain or loiter in any public park:
1. Between the hours of midnight Friday or Saturday and five a.m. of the following day; and
2. Between the hours of eleven p.m. Sunday through Thursday and five a.m. of the following day.
B. The prohibitions contained in subsections
(A)(1) and (A)(2) of this section shall not apply:
1. To any person on an emergency errand;
2. To any person attending a meeting, entertainment event, recreation activity, dance or similar activity in such park provided such activity is sponsored or co-sponsored by the department of parks and community services or a permit therefor has been issued by the department of parks and community services;
3. To any person exiting such park immediately after the conclusion of any activity set forth in subsection (B)(2) of this section;
4. To any peace officer or employee of the city while engaged in the performance of his or her duties.
C. The director, with the concurrence of the chief of police, may designate extended park hours for any park when the director determines that such extension of hours is consistent with sound use of park resources, will enhance recreational activities in the city, and will not be detrimental to the public safety or welfare.
The prohibitions contained in subsections
(A)(1) and (A)(2) of this section shall not apply to any person present in a public park during extended park hours designated pursuant to this subsection.
D. The chief of police, with the concurrence of the director of parks and community services, may order any park closed between sunset and sunrise when he or she determines that activities constituting a threat to public safety or welfare have occurred or are occurring in the park and that such closing is necessary to protect the public safety or welfare. At least one sign designating the sunset to sunrise closing shall be installed prominently in the park. When a park is ordered closed between sunset and sunrise, it is unlawful for any person to remain or loiter in said park during said period. (Prior code § 27.04.070).
Plaintiffs state that on October 7, 2011, shortly after 11:00 p.m., and on succeeding nights up to and including the date the FAC was filed, members of the City's Police Department ordered Plaintiffs and others out of the Park at the closing times designated in § 12.72.090. (Id. at ¶¶ 11, 12.) Plaintiffs contend that any Occupy Sacramento members who remained were arrested pursuant to § 12.72.090. (Id. at ¶ 12.) They contend that as a result of the City's enforcement of § 12.72.090, their "peaceable assembly was disrupted and Plaintiffs are afraid to exercise their constitutional rights to peaceably assemble, to engage in constitutionally protected activity, to engage in political speech, to petition the government for redress of grievances, to freely associate with other likeminded citizens in Cesar Chavez Park" after the hours set forth in § 12.72.090. (Id. at ¶ 12.)
Specifically, they contend they are afraid their liberty will be arrested if they remain the Park after hours. (Id. at ¶ 13.)
Plaintiffs also assert that "the City routinely sponsors and/or co-sponsors events which are held after the hours specified in city code section 12.72.090, and there are no standards by which determinations are made and discretion is exercised as to which events are permitted to be held after such hours." (Id. at ¶ 12.) Further, they contend that "Occupy Sacramento, through its counsel, has requested permission from Defendants to remain in Cesar Chavez Park after park hours but Defendants have failed and refused to grant such permission." (Id.)
On October 6, 2011, Plaintiffs' counsel, Mark Merin, first sought a temporary restraining order ("TRO") from the Sacramento County Superior Court that would prevent the City from enforcing the City Code "as it pertains to illegal camping (Sacramento City Code Chapter 12.52) and loitering in parks between the hours of 11:00 p.m. and 5:00 a.m. (Sacramento City Code Section 12.72.090)." (Request for Judicial Notice, ECF No. 23, Ex. A (Oct. 7, 2011, Superior Court Order) at 5.)*fn4
Following oral argument, which occurred at 8:30 p.m. on October 6, the Superior Court concluded that the petitioner had failed to establish that it would suffer irreparable harm absent the TRO, "as the demonstration could be held during normal park hours" and the court doubted whether petitioner could succeed on the merits. (Id. at 5-6; Ex. B at 9.) Furthermore, the Superior Court held that the petitioner had not reasonably attempted to apply for a permit to use the park until October 6, and therefore failed to exhaust administrative remedies. (Id.; RJN Ex. B at 9.)
On November 1, 2011, Plaintiffs filed this action, seeking declaratory judgment, a TRO, preliminary and permanent injunctive relief, as well as damages and attorneys' fees. (See ECF No. 1 (original complaint)). The Court issued an abbreviated briefing schedule with the TRO hearing scheduled for November 3. (See ECF No. 8.) The parties timely filed their Opposition and Reply and, on November 2, Plaintiffs filed their FAC. (ECF No. 9.)
On Thursday, November 3, the Court held a hearing on Plaintiffs' Motion for TRO. (See November 4, 2011, Order, ECF No. 17). At the hearing, the Court orally denied the TRO motion, stating that a written order would follow. (Id. at 6.) On November 4, 2011, the Court issued its written Order.
In its Order, the Court noted that, at the TRO hearing, counsel for the parties had advised the Court that, earlier in the day on November 3, Plaintiffs had, apparently for the first time (despite the language in the Superior Court's Order suggesting otherwise), filed an application for an overnight use permit for the Park with the Department of Parks and Recreation and that the Parks Director had promised to review the application on an expedited basis and promised a decision by Monday, November 7.*fn5 (Id.) Despite this, Counsel had decided to proceed with the hearing. (Id.)
Turning to the parties' arguments regarding Plaintiffs' request for a TRO, The Court first determined that (1) denial of the TRO was warranted on the procedural ground that although the Superior Court had denied Plaintiffs' counsel's petition for a TRO on October 7, 2011 (see RJN Exs. A and B), Plaintiffs did not file their action in this Court until November 1, 2011, some twenty-five days later. (Order, ECF No 17 at 7-8.) The Court concluded that this constituted undue delay, as Plaintiffs could have sought injunctive relief in the interim. (Id. at 8-9.) Furthermore, the Court found that Plaintiffs had not demonstrated that they were pursuing their rights with City or state officials (e.g., seeking the aforementioned overnight use permit) in the interim. (Id.)
In addition, the Court found that Plaintiffs were not attempting to maintain the status quo, but to change it. (Id. at 10-12.) Specifically, the Court concluded that the status quo was the City's practice of enforcing of the Park hours pursuant to the approximately thirty year-old City Code § 12.72.090, whereas what Plaintiffs sought was to change the status quo in such a manner that the City would no longer enforce the statute. (Id. at 10-12.)
As to the substantive merits of Plaintiffs' claims, for the purpose of determining whether a TRO was warranted, the Court first noted that Plaintiffs had to meet the burdens of either Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008) (party requesting preliminary injunctive relief must show that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest") or Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the "serious questions" version of the sliding scale test for preliminary injunctions remains viable after Winter). (Id. at 7, 12-13.) The Court then analyzed Plaintiffs' First Amendment claims and determined that, for the purposes of the TRO under both the Winter or Cottrell standards, § 12.72.090 appeared to be a facially valid content-neutral time, place and manner restriction and that § 12.72.090 did not give the Director of the City parks unlimited discretionary authority, as Plaintiffs' contended. (Id. at 13-24.)
Thus, the Court concluded that no TRO was warranted as there did not appear to be a likelihood that Plaintiffs could succeed on either their facial or as applied challenges to § 12.72.090. (Id. at 24.)
Thereafter, on November 22, 2011, Plaintiffs withdrew their motion for a preliminary injunction (see ECF Nos. 18 and 19). Plaintiffs did not ...