United States District Court, S.D. California
ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS; AND (2) GRANTING LEAVE TO
James Lorenz United States District Judge.
before the Court is Defendants’ Motion to Dismiss
Plaintiff’s First Amended Complaint. Plaintiff filed an
opposition and Defendants replied. The Court decides this
matter on the briefs without oral argument. See Civ.
L. R. 7.1(d.1). For the reasons stated below,
Defendants’ motion is granted in part and denied in
part. Plaintiff is granted leave to amend.
Diego, adult entertainment establishments are regulated by
the Police Department. (First Amended Complaint
("FAC") Ex. 1 (San Diego Municipal Code
("SDMC") §33.3601).) A police permit is
required to operate an adult entertainment establishment or
perform as an adult entertainer. SDMC §§33.3603
& 33.3604. Section 33.0103 confers authority on police
officers to inspect police-regulated businesses, including
adult entertainment establishments:
(a) The Chief of Police shall make, or cause to be made,
regular inspections of all police-regulated businesses. Any
peace officer shall have free access to any police-regulated
business during normal operating hours. It is unlawful for
any permittee or employee to prevent or hinder any peace
officer from conducting an inspection.
(b) Any police code compliance officer assigned by the Chief
of Police to conduct inspections shall have free access to
any police-regulated business during normal operating hours.
It is unlawful for any permittee or employee to prevent or
hinder any police code compliance officer from conducting an
(c) The right of reasonable inspection to enforce the
provisions of this Article is a condition of the issuance of
a police permit. The applicant or permittee shall acknowledge
this right of inspection at the time of application. Refusal
to acknowledge this right of inspection is grounds for denial
of the application. The right of inspection includes the
right to require identification from responsible persons or
employees on the premises. The refusal to allow inspection
upon reasonable demand or the refusal to show identification
by responsible persons or employees is grounds for the
suspension, revocation, or other regulatory action against
the police permit.
(denoting terms defined elsewhere in the Ordinance) omitted.)
based on §33.0103, on July 15, 2013, armed police
officers wearing bullet proof vests raided Cheetahs, an adult
entertainment establishment in San Diego, where Plaintiff was
working as an entertainer. (FAC ¶¶ 13-15 & 56.)
Plaintiff was performing on stage at Cheetahs when the police
officers entered the premises. (Id. ¶15.) The
officers ordered the entertainers into the locker room behind
the dressing rooms. (Id. ¶ 24.) They
interrogated Plaintiff, along with all the other
entertainers, and demanded her entertainer permit,
driver’s license, and social security number. They
wanted to know if she had any tattoos or body piercings.
(Id. ¶19.) The officers photographed each
entertainer in a nearly nude state claiming they had to
document their tattoos. (Id. ¶¶ 26 &
27.) They threatened to arrest the entertainers who objected
to detention or photographs. Armed officers were posted at
the doors to prevent the entertainers from leaving.
(Id. ¶¶17, 23 & 57.) Plaintiff was
detained for approximately two hours. (Id. ¶
29.) On March 6, 2014, police officers again raided Cheetahs,
as well as Expose, another adult entertainment establishment
in San Diego. (Id. ¶¶13, 14.)
on these facts, Plaintiff filed an action in state court
alleging violation of her rights under federal and California
law. Defendants removed it to this Court based on federal
question jurisdiction under 28 U.S.C. §§1331 and
1441. The Court has supplemental jurisdiction over state law
claims under 28 U.S.C. §1367.
moved to dismiss Plaintiff's initial complaint. The
motion was granted in part and denied in part, and Plaintiff
was granted leave to amend. At issue in the pending motion is
the sufficiency of Plaintiff's First Amended Complaint,
wherein she asserts claims for: (1) deprivation of rights
under 42 U.S.C. §1983 ("§1983"), alleging
the licensing scheme established by San Diego Municipal
Ordinance O-18885 ("Ordinance"), including SDMC
§33.0103, is unconstitutional under the First, Fourth,
and Fourteenth Amendments of the United States Constitution,
both on its face and as applied; (2) deprivation of rights
under §1983 alleging municipal liability under
Monell v. Department of Social Services, 436 U.S.
658 (1978), based on an unlawful policy, practice, or custom;
unlawful ratification; and failure to properly train; (3)
violation of California Civil Code §52.1 ("Bane
Act") alleging intentional interference with enjoyment
of rights under the United States and California
constitutions; and (4) false imprisonment under California
law. Plaintiff seeks damages, declaratory and injunctive
relief. Defendants move to dismiss the entire complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the complaint. See N. Star Int’l v.
Ariz. Corp. Comm’n., 720 F.2d 578, 581 (9th Cir.
1983). A complaint may be dismissed as a matter of law either
for lack of a cognizable legal theory or for insufficient
facts under a cognizable theory. Robertson v. Dean Witter
Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). The
Court must assume the truth of all factual allegations in the
complaint and “construe them in the light most
favorable to [the nonmoving party].” Gompper v.
VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see
also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d
1575, 1580 (9th Cir. 1996). “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations and quotation marks omitted). Instead,
the allegations “must be enough to raise a right to
relief above the speculative level.” Id.
Defendants argue variously that Plaintiff did not allege
sufficient facts to state grounds for relief based on the
alleged police raid on Cheetahs in July 2013, and that her
claims lack a cognizable legal theory.
first, ninth, tenth and eleventh causes of action,
Plaintiff claims, among other things, that the Ordinance
violates the First Amendment on its face and as applied.
Defendants initially argue these claims were dismissed with
prejudice from the original complaint, and should be
dismissed from the amended complaint because Plaintiff did
not have leave to amend. To the contrary, the order expressly
granted Plaintiff leave to amend. (Order Granting in Part and
Denying in Part Defs' Mot. to Dismiss and Granting
Pl.'s Mot. for Relief, filed Mar. 16, 2015 (doc. no. 18)
at 16:7; but see Id. at 16:21-22 (dismissed with
Defendants contend the facial challenge claims should be
dismissed because §33.0103 is a content-neutral,
legitimate time, place, or manner restriction. Section
33.0103 applies to all businesses listed in Chapter 3 Article
3 of the San Diego Municipal Code. SDMC § 33.0101. In
addition to adult entertainment establishments, the list
includes auto dismantlers, promoters, ticket brokers, swap
meets, holistic health practitioners, etc. Id.
§§33.0701-33.4401. Section 33.0103 was therefore
not enacted to suppress the content or viewpoint of the
speech associated with adult entertainment.
Furthermore, adult entertainment was included in the
Ordinance to further significant governmental interests:
It is the purpose and intent of this Division to provide for
the orderly regulation of the business of nude entertainment
in The City of San Diego by establishing certain minimum
standards for the conduct of this type of business to protect
the public order and the general welfare of the residents of
The City of San Diego, including the prevention of
prostitution, obscenity, lewd acts, money laundering and the
infiltration of organized crime and its associated problems,
the prevention of the spread of disease, the prevention of
the deterioration of neighborhoods, the reduction of crime in
and around adult entertainment businesses, and the
preservation of the quality of urban life in The City of San
Diego. It is not the intent of this Division to deny adults
access to adult oriented materials protected by the First
Amendment, or to deny access by the distributors and
exhibitors of adult oriented entertainment to their intended
SDMC §33.3601 (emphases omitted).
does not dispute that the Ordinance is viewpoint-neutral and
seeks to protect substantial governmental interests unrelated
to the suppression of free speech. Rather, she contends it
confers unbridled discretion on the police in inspecting
adult entertainment establishments, that this has a chilling
effect, and constitutes a prior restraint on speech.
licensing statute in the area of free expression "vests
unbridled discretion in a government official over whether to
permit or deny expressive activity, " it creates a prior
restraint on speech, and is subject to a facial attack.
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S.
750, 755-56, 757 (1988). In Lakewood, an ordinance
regulating news racks on public property required an annual
permit from the mayor. Lakewood, 486 U.S. at 753,
754. The ordinance contained no explicit limits on the
exercise of discretion. Id. at 769. The mayor could
deny the permit by stating reasons, but no requirement for
specificity was included. Id. at 754 & 769;
see also Id. at 754 n.2 (ordinance text).
Alternatively, the mayor could grant the permit on any
"terms and conditions [he or she] deemed necessary and
reasonable." Id. at 754. The ordinance was
subject to a facial attack because it was "apparent that
the face of the ordinance itself contain[ed] no explicit
limits on the mayor's discretion." Id. at
769. The "doctrine forbidding unbridled discretion ...
requires that the limits ... implicit in [the] law, "
i.e., that it will be applied in good faith for
reasons related to the governmental interests sought to be
protected, "be made explicit by textural incorporation,
binding judicial or administrative construction, or
well-established practice." Id. at 770. The
portions of the ordinance giving the mayor unfettered
discretion were therefore held unconstitutional on their
face. Id. at 772.
"even if the government may constitutionally impose
content-neutral prohibitions on a particular manner of
speech, it may not condition that speech on
obtaining a license or permit from a government official in
that official's boundless discretion."
Lakewood, 486 U.S. at 764 (emphasis in original).
Here, the Ordinance is so conditioned. It provides for
"regular" "reasonable" inspections
"during normal operating hours, " but includes no
other criteria for how, when or how often the police may
conduct them and does not delineate the scope of inspection.
SDMC §33.0103. The inspections are "a condition of
the issuance of a police permit" and "[t]he refusal
to allow inspection upon reasonable demand ... is grounds for
the suspension, revocation, or other regulatory action
against the police permit." Id.
§33.0103(c). The permit must be renewed annually.
Id. §33.0308. If it has been revoked, it cannot
be renewed. Id. §33.0308.
the Ordinance does not provide any explicit meaningful
criteria for the scope of the inspections, which are a
requirement to obtain or renew the permit, and is therefore
subject to a facial attack. Defendants' reliance on
City of Erie v. Pap's A.M., 529 U.S. 277, 289-93
(2000), is unavailing, because it does not address the issue
raised by Plaintiff, i.e., prior restraint of speech
created by a licensing scheme giving the government
unfettered discretion. Plaintiff ...