United States District Court, N.D. California, San Jose Division
DIAMOND S.J. ENTERPRISE, INC., Plaintiff,
The CITY OF SAN JOSE, Defendant.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Gill Sperlein, Randazza Legal Group, PLLC, San Francisco, CA,
Kathryn Jennifer Zoglin, Office of the City Attorney, San
Jose, CA, for Defendant.
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY
KOH, United States District Judge.
the Court is Defendant City of San Jose's motion for
summary judgment, ECF No. 102, and Plaintiff Diamond S.J.
Enterprise, Inc.'s cross-motion for partial summary
judgment, ECF No. 103. Both motions have been fully briefed.
Having considered the submissions of the parties, the
relevant law, and the record in this case, the Court GRANTS
Defendant's motion for summary judgment and DENIES
Plaintiff's cross-motion for partial summary judgment.
version of the facts is drawn from its request for judicial
notice of the state administrative record, ECF No. 102-1
("RJN"). Plaintiff also asks the Court to adopt
Defendant's statement of facts for purposes of summary
judgment. Pl.'s Mot. at 1. A court "may take notice
of proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct
relation to matters at issue." United States ex rel.
Robinson Rancheria Citizens Council v. Borneo, Inc., 971
F.2d 244, 248 (9th Cir. 1992). The Court GRANTS
Defendant's request for judicial notice. The Court also
grants Plaintiff's request that the Court adopt
Defendant's statement of facts for purposes of the
Diamond S.J. Enterprise, Inc. operates a nightclub called SJ
Live, sometimes referred to as Studio 8. The nightclub is
owned by Jenny Wolfes, who also owns two other clubs.
Plaintiff's patrons generally reserve tables and agree to
purchase bottles of alcohol, referred to as "table
service" or "bottle service," rather than
paying in advance.
Embay, an event promoter, approached Wolfes to have her book
an artist named "Lucci," whom Wolfes agreed to book
for the evening of May 27, 2017. However, during the event,
Wolfes realized that Embay had collected money from some
people in advance for table service. Wolfes believed that
Embay had "double-booked" tables, when Embay was
not supposed to book any tables at all. Wolfes responded by
telling Embay, "We're done." Wolfes paid Embay
approximately $5,000, cancelled the entertainment, and asked
Embay to leave. Embay then threatened Wolfes in front of
security guards. Wolfes soon closed the front door.
Jose Police Officer Condon was later called to the scene to
respond to a call reporting that a shooting took place at
approximately 1:30 a.m. Officer Condon learned that a man,
later identified as Embay, exited Plaintiff's
establishment, walked to his car, and retrieved a gun from
the trunk. Embay purportedly walked toward a group of
approximately ten people with his gun, and several people
were seen ducking and running out of his way. Embay fired his
gun multiple times before he returned to his car and drove
out of the parking lot.
reviewing the footage, the San Jose Police Department noticed
a number of security violations. For example, the outside
area of the club was not cleared once the club decided to
close its front door. Wolfes estimated that 40 to 50 people
were in line when the doors were closed. Wolfes explained
that people who were told they would have a table that night
became angry once the doors closed, and they stormed the
front door. Wolfes also acknowledged that she had not secured
an indemnification agreement with Embay prior to the event.
17, 2017, the San Jose Police Chief issued a Notice of
Intended Action to Revoke Entertainment Permit to Plaintiff.
Plaintiff requested an administrative hearing to review
Defendant's intended revocation of SJ Live's
entertainment permit. On October 11, 2017, an administrative
hearing was held before deputy chief of police Mark
Bustillos. On November 17, 2017, Bustillos issued a
"Notice of and Decision on Intended Action to Revoke
Entertainment Permit, in which Defendant announced its
decision to suspend SJ Live's entertainment permit for
thirty days," in lieu of completely revoking the
entertainment permit. Bustillos found that Plaintiff violated
SJMC Chapter 6.60 by hiring an unlicensed promoter for whom
Plaintiff was responsible and by creating a public nuisance.
then appealed the suspension to the Appeal Hearings Board,
which held a hearing on February 8, 2018. In its written
decision mailed on February 26, 2018, the Board rejected the
administrative hearing's finding regarding the hiring of
an unlicensed promoter but upheld the public nuisance charge.
Thus, the Board affirmed the suspension of SJ Live's
entertainment permit for 30 days.
March 1, 2018, Plaintiff brought suit in this Court against
Defendant. ECF No. 1. The complaint was accompanied by an ex
parte motion for a temporary restraining order. ECF No. 2.
The temporary restraining order was denied without prejudice
on March 1, 2018. ECF No. 12. On March 2, 2018, Plaintiff
filed an amended motion for a temporary restraining order.
ECF No. 15. That same day, the Court directed the Plaintiff
to serve Defendant and ordered Defendant to respond. ECF No.
18. On March 2, 2018, the Court denied Plaintiff's
amended motion for a temporary restraining order. ECF No. 22.
20, 2018, Plaintiff filed a first amended complaint
("FAC"). ECF No. 32. Defendant filed its motion to
dismiss and/or strike the FAC on July 20, 2018, ECF No. 37,
which the Court granted in part and denied as moot in part,
ECF No. 51.
November 28, 2018, Plaintiff filed a second amended
complaint. ECF No. 54 ("Second Amended Complaint,"
or "SAC"). The SAC alleges four claims for relief
against Defendant: (1) a claim under 42 U.S.C. § 1983
for violation of Plaintiff's First Amendment rights,
pursuant to theories of overbreadth, vagueness, and prior
restraint; (2) a claim under 42 U.S.C. § 1983 for
violation of Plaintiff's Fourteenth Amendment due process
rights for impermissible vagueness; (3) a claim under 42
U.S.C. § 1983 for violation of Plaintiff's
Fourteenth Amendment due process rights to a fair hearing;
and (4) a claim under the California Constitution for
interference with free speech and due process rights.
December 12, 2018, Defendant filed a motion to dismiss, for
judgment on the pleadings, and/or to strike the SAC. ECF No.
55. On July 1, 2019, the Court granted Defendant's motion
in part and dismissed all of Plaintiff's claims, with the
exception of its First Amendment claim based on theories of
overbreadth and vagueness ("MTD Order"). ECF No.
82. On September 5, 2019, the Court denied Plaintiff's
request to file a motion for reconsideration and denied
Plaintiff leave to amend the Second Amended Complaint. ECF
October 31, 2019, Defendant filed a motion for judgment on
the pleadings, summary judgment, and/or partial summary
judgment, ECF No. 102 ("Def's Mot."). On
November 14, 2019, Plaintiff filed an opposition, ECF No. 105
("Opp'n to Def.'s Mot."), and Defendant
filed a reply on November 21, 2019, ECF No, 107 ("Reply
to Def's Mot.").
filed a cross-motion for partial summary judgment, ECF No.
103 ("Pl.'s Mot."). On November 14, 2019,
Defendant filed an opposition, ECF No. 104 ("Opp'n
to Pl.'s Mot."), and Plaintiff filed a reply on
November 21, 2019, ECF No. 107 ("Reply to Pl.'s
Mot."). Defendant filed an amended opposition on
November 22, 2019, ECF No. 108, which only added a sentence
to the table of contents.
opposition, Defendant objects to evidence cited by Plaintiff
in support of Plaintiff's cross-motion for partial
summary judgment. Specifically, Defendant objects to
paragraphs 4, 8, and 9 of the Declaration of Jenny Wolfes,
ECF No. 103-1, on grounds of relevance and lack of
foundation. Opp'n to Pl.'s Mot. at 2. Defendant also
objects to Plaintiff's citations to its own unverified
complaint as evidence. Id. However, even considering
the evidence to which Defendant objects, the Court denies
Plaintiff's cross-motion for partial summary judgment and
grants Defendant's motion for summary judgment, as
explained below. Accordingly, the Court overrules the
objections as moot.
judgment is proper where the pleadings, discovery, and
affidavits show that there is "no genuine dispute as to
any material fact and [that] the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a).
Material facts are those which may affect the outcome of the
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See id.
party moving for summary judgment bears the initial burden of
identifying those portions of the pleadings, discovery and
affidavits that demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the
moving party meets its initial burden, the nonmoving party
must go beyond the pleadings and, by its own affidavits or
discovery, "set forth specific facts showing that there
is a genuine issue for trial." Fed.R.Civ.P. 56(e). If
the nonmoving party fails to make this showing, "the
moving party is entitled to judgment as a matter of
law." Celotex Corp., 477 U.S. at 323, 106 S.Ct.
summary judgment stage, the Court must view the evidence in
the light most favorable to the nonmoving party: if evidence
produced by the moving party conflicts with evidence produced
by the nonmoving party, the judge must assume the truth of
the evidence set forth by the nonmoving party with respect to
that fact. See Santillan v. USA Waste of Cal., Inc.,
853 F.3d 1035, 1043 n.8 (9th Cir. 2017).
First Amendment applies to state laws and regulations through
the Due Process Clause of the Fourteenth Amendment."
Nat'l Ass'n for Advancement of Psychoanalysis v.
California Bd. of Psychology, 228 F.3d 1043, 1053 (9th
Cir. 2000). Although the First Amendment protects "the
freedom of speech," U.S. Const. amend I, its protections
are not limitless. The United States Supreme Court has
distinguished between "restrictions on protected
expression," which are subject to First Amendment
scrutiny, and "restrictions on economic activity or,
more generally, on nonexpressive conduct," which do not
ordinarily implicate the First Amendment's protections.
Sorrell v. IMS Health Inc., 564 U.S. 552, 567, 131
S.Ct. 2653, 180 L.Ed.2d 544 (2011).
not every law can be easily categorized as either directed at
protected expression or directed at commerce or conduct
because "every civil and criminal remedy imposes some
conceivable burden on First Amendment protected
activities." Arcara v. Cloud Books, Inc., 478
U.S. 697, 706, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). The
First Amendment may be implicated where "`speech'
and `non-speech' elements are combined in the same course
of conduct," see United States v. O'Brien,
391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968),
although merely "incidental burdens on speech" are
not alone sufficient to trigger First Amendment protections,
Sorrell, 564 U.S. at 567, 131 S.Ct. 2653.
to determine whether a governmental restriction on conduct
with both expressive and nonexpressive elements implicates
the First Amendment, the "threshold question is whether
conduct with a `significant expressive element' drew the
legal remedy or the ordinance has the inevitable effect of
`singling out those engaged in expressive
activity.'" Int'l Franchise Ass'n, Inc.
v. City of Seattle,803 F.3d 389, 408 (9th Cir. 2015)
(quoting Arcara, 478 U.S. at 706-07, 106 S.Ct.
3172). Put another way, a regulation does not implicate the
freedom of expression unless nonexpressive conduct
"intimately related to expressive conduct" led the