Doe v. City of San Diego

          ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS; AND (2) GRANTING LEAVE TO AMEND

          Hon M. James Lorenz United States District Judge.

         Pending 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.^[1] Plaintiff is granted leave to amend.

         I. Background

         In San 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 inspection.

(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.

         (Emphases (denoting terms defined elsewhere in the Ordinance) omitted.)

         Ostensibly 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.)

         Based 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.

         Defendants 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 a claim.

         II. Discussion

         A 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.

         A. First Amendment

         In her first, ninth, tenth and eleventh causes of action, ^[2] 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 prejudice).)

         Next, 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 market.

SDMC §33.3601 (emphases omitted).

         Plaintiff 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.

         When a 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.

         Accordingly, "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.

         Accordingly, 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 ...