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Landslide Communications, Inc. v. State

United States District Court, Ninth Circuit

December 27, 2013

STATE OF CALIFORNIA; KAMALA HARRIS, in her capacity as Attorney General of California; CALIFORNIA FAIR POLITICAL PRACTICES COMMISSION; ANN RAVEL, in her capacity as Chair of the Fair Political Practices Commission, Defendants.


GARLAND E. BURRELL, Jr., Senior District Judge.

Pending are cross-motions for summary judgment on all claims in Plaintiffs' First Amended Complaint ("FAC"). Plaintiffs challenge a recently-enacted California statute prescribed in California Government Code section 84305.7(c), which governs certain election mail. Plaintiffs' FAC comprises the following claims: declaratory relief that the statute does not apply to Plaintiffs' California Public Safety Newsletter and Voter Guide publication (hereinafter referred to as "mailing" or by full title), and that if it applies, it is unconstitutional as applied; and injunctive relief under 42 U.S.C. § 1983 preventing violations of Plaintiffs' rights under the First Amendment Free Speech and Association Clauses, the Fourteenth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection Clause.

Oral argument was heard on November 11, 2013. For the reasons stated below, Defendants' motion is GRANTED, and Plaintiffs' motion is DENIED.


A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). "A fact is material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n , 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id . (quoting Anderson , 477 U.S. at 248). To meet this burden, the movant must "inform[] the district court of the basis for its motion, and identify[] those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. , 477 U.S. at 323 (internal quotation marks omitted).

If the movant satisfies its "initial burden, " "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987) (quoting former Fed.R.Civ.P. 56(e)); see also Fed.R.Civ.P. 56(c)(1). The nonmoving party "cannot rest upon the mere allegations or denials of the adverse party's pleading' but must instead produce evidence that set[s] forth specific facts showing that there is a genuine issue for trial.'" Tucker ex rel. Tucker v. Interscope Records, Inc. , 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Anderson , 477 U.S. at 248).

Further, Local Rule 260(b) prescribes:

Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.

If the nonmovant does not "specifically... [controvert duly supported] facts identified in the [movant's] statement of undisputed facts, " the nonmovant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks , 548 U.S. 521, 527 (2006) (finding that a party opposing summary judgment who "fail[s] [to] specifically challenge the facts identified in the [moving party's] statement of undisputed facts... is deemed to have admitted the validity of [those] facts"). "Because a district court has no independent duty to scour the record in search of a genuine issue of triable fact, ' and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, '... the district court... [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf." Simmons v. Navajo Cnty., Ariz. , 609 F.3d 1011, 1017 (9th Cir. 2010) (quoting Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996)).

When deciding cross-motions for summary judgment, each motion is evaluated on its own merits, "giving the nonmoving party in each instance the benefit of all reasonable inferences." ACLU v. City of Las Vegas , 466 F.3d 784, 790-791 (9th Cir.2006) (internal citations and quotations omitted). When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff's claims, the defendant

has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's] claim... or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact.

Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102 (9th Cir. 2000) (citations omitted).


The following facts are undisputed under Local Rule 260(b). Under California law, a "slate mailer" is a "mass mailing which supports or opposes a total of four or more candidates or ballot measures." Cal. Gov't Code § 82048.3. (Defs.' Resp. to Pls.' Statement of Undisputed Facts ¶ 6, ECF No. ECF No. 29.) Plaintiffs' "[mailing] is a slate mailer." ( Id. ¶ 9; see FAC ex. 2; ECF No. 15.) "Plaintiffs' California Public Safety Voter Guide [hereinafter referred to as "the Guide" or by full name] is a slate mailer organization" within the meaning of California Government Code section 82048.4 because "[i]t is involved in the production of one or more slate mailers, exercises control over the selection of candidates and measures found in the slate mailers, and receives payments totaling five hundred dollars... or more in a calendar year to produce slate mailers." (Defs.' Resp. to Pls.' Statement of Undisputed Facts ¶ 8.)

California Government Code section 84305.7(c) prescribes that "[i]f a slate mailer organization sends a slate mailer... that identifies itself or its source material as representing a nongovernmental organization" with a public safety-related name, then it "shall disclose on the outside of each piece of mail... the total number of members in the organization identified in the slate mailer...." ( Id. ¶ 5.) Plaintiffs' mailing lists its publisher with the following phrase in the upper-left corner of the first page of its mailing: "[The Guide] is a Special Project of the Policy Issues Institute." (FAC ex. 2, p. 1.) A silhouette of a firefighter battling a blaze is prominently displayed on the first page below the publication's title. (Id.)

Plaintiffs and their slate mailer organization, The Guide, have no members. (Defs.' Resp. to Pls.' Statement of Undisputed Facts ¶¶ 10, 11.) "Plaintiffs do not wish to publish the total number of members' on ...

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