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Vivid Entm't, LLC v. Fielding

United States District Court, C.D. California

August 16, 2013

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

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For Vivid Entertainment LLC, Califa Productions Inc, Plaintiffs: 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, Lipsitz Green Scime Cambria LLP, Buffalo, NY; Robert Corn-Revere, PRO HAC VICE, Ronald G London, PRO HAC VICE, Davis Wright Tremaine LLP, Washington, DC; Timothy P Murphy, PRO HAC VICE, Lipsitz Green Scime Cambria LLP, Buffalo, NY.

For Jane Doe, also known as Kayden Kross, John Doe, also known as Logan Pierce, Plaintiffs: 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, Lipsitz Green Scime Cambria LLP, Buffalo, NY; Robert Corn-Revere, PRO HAC VICE, Ronald G London, PRO HAC VICE, Davis Wright Tremaine LLP, Washington, DC.

For Jonathan Fielding, Director of Los Angeles County Department of Public Health, Jackie Lacey, Los Angeles District Attorney, County of Los Angeles, Defendants: Andrea E Ross, Office of the County Counsel, Los Angeles, CA; John K Ly, Glaser Weil Fink Jacobs Howard Avchen & Shapiro LLP, Los Angeles, CA.

For Michael Weinstein, Marijane Jackson, Arlette De La Cruz, Mark McGrath, Whitney Engeran, Campaign Committee Yes on B, Major Funding by the AIDS Healthcare Foundation, Intervenors: Samantha Robin Azulay, Thomas Andrew Myers, LEAD ATTORNEYS, AIDS Healthcare Foundation, Los Angeles, CA.

OPINION

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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, United States 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 § 11.39r (" § 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 Injunctive

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Relief. (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 Standard

A. 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 A. 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. 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. 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 (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.

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. ...


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