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Freepb.Org v. City of San Diego

April 25, 2013


The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge


Before the Court is Defendant's Motion to Dismiss Plaintiff's SAC ("Motion"), (ECF No. 24), which has been fully briefed, (ECF Nos. 20, 21), and which the Court finds suitable for disposition without oral argument, see CivLR 7.1.d.1. After a careful consideration of the parties' submissions and the record in this matter, and for the following reasons, the Court hereby GRANTS Defendant's Motion and DISMISSES WITH PREJUDICE Plaintiff's remaining causes of action.


The background of this case, including the relevant provisions of the San Diego Municipal Code ("SDMC"), is fully set forth in Judge Anello's and this Court's prior orders. (See ECF Nos. 14, 22.)

In short, Plaintiff wishes to hold an event on San Diego beaches that will shed light on Defendant's policies regarding access to the beaches, including the ban on alcohol at city beaches. Plaintiff's event will involve the consumption of alcohol, will require a donation to attend, and will involve some display of fireworks. Plaintiff has thus far been unable to obtain the required permit to hold its event. Plaintiff thus challenges section 63.0103 of the SDMC-the so-called summer moratorium-that bars the grant of all space reservations in Mission Bay Park during certain months of the year without a waiver or an exemption. Space reservations are required to submit special event permit applications. Special event permits are required for events involving alcohol and some fireworks displays.

Plaintiff filed its initial complaint on January 6, 2012. (ECF No. 1.) Prior to this case's transfer to this Court, Judge Anello granted Defendant's Motion to Dismiss Plaintiff's initial complaint on July 25, 2012. (ECF No. 14.) Plaintiff thereafter filed its First Amended Complaint ("FAC"). (ECF No. 15.) This Court granted Defendant's Motion to Dismiss Plaintiff's FAC on February 7, 2013, and gave Plaintiff leave to amend so that Plaintiff could plausibly allege it had standing to assert an as-applied challenge to the summer moratorium ordinance. (ECF No. 22.) Plaintiff then filed its Second Amended Complaint ("SAC"). (ECF No. 23.)

The SAC is identical to the FAC except that Plaintiff removed its equal protection claim (which this Court dismissed with prejudice) and added new allegations at paragraphs 18-26. Plaintiff alleges in these new paragraphs that the summer moratorium ordinance is a form of speaker and content-based discrimination because there is no reasonable basis to exempt the events that have been grandfathered in under the ordinance. (ECF No. 23 at ¶ 19.) Plaintiff further alleges "the director of Defendant's park and recreation department told Plaintiff that she did not care what the Mission Bay Advisory Committee recommended to her concerning an event sponsor's waiver request . . . because she would approve or deny the request as she deemed appropriate." (Id. at ¶ 20.) Plaintiff also alleges it has been informed by at least one representative of Defendant . . . that Plaintiff's opposition to the City's policy banning all consumption of alcohol on the City's beaches is the primary reason why Defendant will not give Plaintiff a special event permit for any event it holds involving any consumption of alcohol whatsoever unless it is confined to a "beer garden" (which is not compatible with the event Plaintiff seeks to hold.

(Id. at ¶ 21.)

Plaintiff further alleges that one representative of Defendant has indicated to Plaintiff that the Summer Moratorium was enacted, and that Plaintiff's events were excluded from the list of exempt special events, in order to punish Plaintiff for its prior opposition to enactment of a City-wide ban on the consumption of alcohol at the City's beaches. (Id. at ¶ 23.)

Plaintiff alleges that, on at least two occasions within the last eighteen months, Defendant has delayed issuing denials of Plaintiff's applications for special event permits and then later argued that Plaintiff's constitutional challenge to the ordinance was moot because the date of Plaintiff's event had already passed. (Id. at ¶ 24.)

Plaintiff alleges it "desires to hold special events that promote the reasonableness of allowing responsible adults to enjoy the City's beaches in a variety of ways . . . that include the consumption of alcohol." (Id. at ¶ 25.) Plaintiff claims that "[p]art of the purpose of some of Plaintiff's events is to demonstrate that it is possible for adults to responsibly enjoy alcoholic beverages," thereby disproving the claim that it is impossible for responsible adults to do so. (Id.)


I. Legal Standard

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give "detailed factual ...

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