Opinion
Case No.: 2:20-cv-04911-SB-KS
12-01-2020
Dennis PRICE v. COUNTY OF LOS ANGELES et al.
Dennis Jay Price, II, Center for Disability Access, San Diego, CA, for Dennis Price. Bryan M. Wittlin, Valerie Elizabeth Alter, Kent R. Raygor, Sheppard Mullin Richter and Hampton LLP, Los Angeles, CA, for County of Los Angeles.
Dennis Jay Price, II, Center for Disability Access, San Diego, CA, for Dennis Price.
Bryan M. Wittlin, Valerie Elizabeth Alter, Kent R. Raygor, Sheppard Mullin Richter and Hampton LLP, Los Angeles, CA, for County of Los Angeles.
Proceedings: ORDER GRANTING MOTION TO DISMISS (DKT. NO. 27) AND DENYING MOTION FOR PRELIMINARY INJUNCTION (DKT. NO. 28)
STANLEY BLUMENFELD, JR., U.S. District Judge
This case involves a challenge to specific government curfews issued six months ago following an incident that resulted in nationwide protests, violence, and the deployment of the National Guard. Concerned about their ability to protect their residents during these extraordinary times from looting, rioting, and other criminal acts, the City of Burbank and the County of Los Angeles issued orders establishing curfews of general applicability that lasted several evenings. Plaintiff Dennis Price filed suit seeking to declare unconstitutional and enjoin these orders. While conceding that the government has the right to order general curfews to protect public health, Plaintiff contends that the June curfew orders crossed the constitutional line by targeting protests.
Before the Court is Defendant City of Burbank's motion to dismiss Plaintiff's first amended complaint primarily on mootness grounds, Dkt. No. 27, and Price's second motion for preliminary injunction to enjoin the 6-month-old curfews, Dkt. Nos. 28, 28-1. As to the motion to dismiss, Price filed an opposition, Dkt. No. 37, and Burbank filed a reply, Dkt. No. 38. As to the motion for preliminary injunction, Burbank and co-defendant County of Los Angeles filed oppositions, Dkt. Nos. 33, 35, and Price filed a reply, Dkt. No. 39.
I. BACKGROUND
Following the death of George Floyd in late May 2020, widespread protests arose across the country, including in Los Angeles County. See Dkt. No. 8 (Compl.) ¶ 11. As a result of the large protests and potential threats to public safety, some cities and counties implemented mandatory curfews by emergency order in their jurisdictions. Id. ¶ 13.
On May 30, 2020, the County issued an emergency proclamation, indicating "a curfew [was] necessary to preserve public order and safety." Id. ¶ 26; Compl. Ex. 1. The County issued four daily curfew orders on May 31 and June 1-3, 2020. Dkt. No. 33-1 (County RJN) Exs. 3-6. The first three curfews were imposed from 6:00 p.m. to 6:00 a.m. and the fourth from 9:00 p.m. to 5:00 a.m. Id. Likewise, Burbank, a city within Los Angeles County, issued an emergency proclamation on June 1, 2020. Compl. Ex. 2. The proclamation acknowledged that "[p]eaceful demonstrations are essential to our democratic system," but also explained that "[d]uring these protests ... individuals have engaged in dangerous and unlawful activity, threatening the safety of lawful demonstrators, surrounding businesses, communities, and first responders." Id. Burbank concluded that its ordinary resources to protect the health and safety of its residents were insufficient to address the extraordinary circumstances:
The above conditions constitute the existence of conditions of extreme peril to the safety of persons and property within the City of Burbank, which conditions are likely to be beyond the control of the services, personnel, equipment and facilities of the City of Burbank and require the combined forces of other political subdivisions to combat. Based on these conditions declaring an emergency is necessary for the preservation of public health, safety and order.
Id.
Burbank therefore imposed a curfew from 5:00 p.m. to 6:00 a.m. Id. The curfew applied to all but "peace officers, fire fighters, first-responders and National Guard or other military personnel deployed to the area, credentialed media personnel, individuals traveling to and from work, people experiencing homelessness and without access to a viable shelter, and individuals seeking medical treatment." Id. The curfew was to remain in effect until lifted by Burbank's Director of Emergency Services or until the emergency proclamation lapsed (and the emergency proclamation was to expire in seven days unless further ratified by the City Council). Id.
Plaintiff Dennis Price is a resident of Burbank, California who was allegedly impacted by both sets of curfew orders. On June 2, 2020, Price filed a complaint against the County and Burbank. Dkt. No. 1. On June 3, 2020, Price filed a first amended complaint for declaratory and injunctive relief against the County and Burbank. Dkt. No. 8. This complaint alleges three constitutional violations: (1) violation of the right to assemble, (2) violation of the right to free movement, and (3) violation of due process for lack of notice of the curfews. Compl. ¶¶ 37-59.
On June 3, 2020, Price applied ex parte for a temporary restraining order to enjoin enforcement of the County and Burbank's curfew orders. Dkt. No. 11. Two days later, however, Price voluntarily withdrew his application because both Defendants had ceased enforcing a curfew and Defendants "cessation of the offending conduct ... mooted the urgent need [for] enjoining the curfew orders." Dkt. No. 21. On July 15, 2020, Price moved for a preliminary injunction against the County and Burbank, and, on the same day, Burbank moved to dismiss Price's first amended complaint for mootness and lack of standing. Dkt. No. 27 (MTD). Price filed an opposition. Dkt. No. 37 (Opp. to MTD).
On July 24, 2020, the County also moved to dismiss Price's complaint on similar grounds as those raised by Burbank. That motion is scheduled to be heard on January 11, 2021. Dkt. No. 31.
II. REQUEST FOR JUDICIAL NOTICE
Burbank and the County request that this Court take judicial notice of several materials in support of their respective positions.
Burbank requests judicial notice of (1) a proclamation of the County's State of Local Emergency, (2) a June 1, 2020 Twitter post from the County providing information about curfew, (3) the June 9, 2020 Burbank City Council Meeting Agenda, (4) the June 1, 2020 Burbank Proclamation of Local Emergency, and (5) the June 1-3, 2020 Burbank Newsroom posts concerning the curfew. Dkt. Nos. 27-1, 35-1.
The County requests judicial notice of fifteen items: (1) the orders and proclamations made by the Los Angeles County Board of Supervisors and the Governor of the State of California, set forth in Exhibits 1 to 6; (2) multiple Twitter posts from county officials announcing the curfews, set forth in Exhibit 7; (3) the record of official motions and votes of the Los Angeles County Board of Supervisors, set forth in exhibits 8 to 11; and (4) arrest logs and an incident report from the Burbank Police Department, set forth in Exhibits 12 to 15. Dkt. No. 33-1.
The Court GRANTS the unopposed requests for judicial notice. See Fed. R. Evid. 201(b) (permitting judicial notice of facts that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned"). In doing so, the Court considers the existence of the publicly available records (i.e., the undisputed matters of public record), and not the truth of any facts in those records that are reasonably subject to dispute. See Lee v. City of Los Angeles , 250 F.3d 668, 689-90 (9th Cir. 2001).
III. BURBANK'S MOTION TO DISMISS
A. Legal Standard
Burbank moves to dismiss Price's first amended complaint on two grounds. First, Burbank argues that Price does not allege a concrete injury in fact and thus fails to establish standing. MTD 5-7. Second, Burbank contends Price's complaint is moot because Burbank's curfews have ended and not recurred. MTD 8-9.
Burbank's motion is improperly filed under Federal Rule of Civil Procedure 12(b)(6). MTD 4; see Maya v. Centex Corp. , 658 F.3d 1060, 1067 (9th Cir. 2011) ("[L]ack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)."). The Court thus construes Burbank's motion as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Abukar v. United States , No. C11-1708-MJP-BAT, 2012 WL 1598056, at *1 (W.D. Wash. Apr. 11, 2012) (construing Rule 12(b)(6) motion under Rule 12(b)(1) ).
A Rule 12(b)(1) motion may be either facial (where the jurisdictional defects are plain on the face of the pleading) or factual (where the jurisdictional defects are apparent from evidence extrinsic to the complaint). Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Ass'n of Am. Med. Colls. v. United States , 217 F.3d 770, 778-79 (9th Cir. 2000). To meet this burden, the pleading party must show, "affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction." Tosco Corp. v. Cmtys. for a Better Env't , 236 F.3d 495, 499 (9th Cir. 2001). If a plaintiff fails to establish subject matter jurisdiction, "the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Id. (citation omitted).
B. Mootness
Price's claims are moot because Burbank's curfew order undisputedly expired on June 3, 2020. See Dkt. No. 21 (expiration of curfew acknowledged by plaintiff); accord Reply to Opp. to MTD 5 (expiration of curfew acknowledged by Burbank). Under Ninth Circuit law, there is no ongoing controversy. See Wilson v. Webster , 467 F.2d 1282, 1283 (9th Cir. 1972) (holding that "the District Court acted properly in refusing preliminary relief and in dismissing the action ... [for] preventive injunctive relief" when "plaintiffs' proof [of repetition] was lacking in any showing of imminent future injury"); cf. Burke v. Barnes , 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987) (expiration of statute rendered case moot).
The only question is whether an exception to the mootness doctrine applies—namely, the exception for controversies that are "capable of repetition, yet evading review." This exception applies "only in exceptional situations, where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Hamamoto v. Ige , 881 F.3d 719, 722 (9th Cir. 2018) (citation omitted). As to the second requirement, a " ‘mere physical or theoretical possibility’ of a challenged action again affecting a plaintiff is not sufficient." Sample v. Johnson , 771 F.2d 1335, 1340 (9th Cir. 1985) (citation omitted). Rather, there must be a " ‘reasonable showing’ of a ‘sufficient likelihood’ that plaintiff will be injured again." Id. The "burden for showing a likelihood of recurrence" is "firmly on the plaintiff." Id. at 1342.
Price fails to shoulder his burden. Even assuming that curfews are necessarily too short to permit full litigation, Price fails to show a sufficient likelihood that he will be injured again by a similar curfew. The curfew order was expressly predicated on extraordinary, if not unprecedented, "conditions of extreme peril" that created "imminent danger to people and property"—a confluence of "widespread arson, looting, vandalism, and rioting" in adjacent areas. Compl. Ex. 2. In response, Price contends that the "circumstances that [led] to the curfews in this case have not ended," which he describes as a cycle of police brutality, protests, and responsive police brutality. Opp. to MTD 8-9. But Price's argument is self-defeating: even with continued protests and unrest, Burbank has not issued a new curfew since June. Price is therefore left to rely on a theoretical risk of a curfew "at some indeterminate time in the future," which "is too remote and too speculative a consideration to save this case from mootness." Ctr. For Biological Diversity v. Lohn , 511 F.3d 960, 964 (9th Cir. 2007) ; see Halvonik v. Reagan , 457 F.2d 311, 313 (9th Cir. 1972) ("Here we are faced with regulations triggered by emergency and dependent upon the occurrence of extraordinary events rather than arising in the normal course of regulation.").
Nor does Price improve his argument by citing decades-old curfews as evidence of likely recurrence. He claims that "curfews are not-unlikely actions taken by local officials in response to unrest," and that curfews could arise from earthquakes that "will and do occur" because "Los Angeles County exists on a fault line." Opp. to MTD 7-8. But the evidence he cites in support are "the Rodney King and Northridge curfews" that occurred in the 1990s. Id. The age and paucity of examples do not advance his point. See Wilson , 467 F.2d at 1283 (insufficient evidence of likely recurrence of allegedly wrongful conduct following a curfew ordinance that had been rescinded); see also Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers , 941 F.3d 1195, 1199 (9th Cir. 2019) (en banc) (court "should presume that the ... expiration of legislation will render an action challenging the legislation moot, unless there is a reasonable expectation that the legislative body will reenact the challenged provision or one similar to it"). Indeed, Plaintiff acknowledges that curfews limiting hours of protest because of widespread rioting are "rare," and that the "Rodney King Riots Curfew ... [was] an unprecedented event." Reply to Opp. to PI 3.
Plaintiff concedes that his lawsuit is not challenging curfews to address earthquakes. Reply to Opp. to PI 11-12; see discussion infra. His reference to the Northridge curfew or the potential for future earthquake-related curfews is thus unclear.
For purposes of determining the mootness question here, it is important to stress that Plaintiff has limited his challenge to a specific curfew order. He claims that Burbank's order violates his rights because it was enacted for "the purpose of suppressing free speech activity." Id. at 11. He emphasizes that "[t]his suit does not challenge the broader ability for a municipality to enact a curfew," including one enacted to "manag[e] an earthquake or other public health crisis." Id. In fact, Plaintiff expressly "concede[s] that a public health or disaster curfew" would fall outside the relief sought in this case. Id. at 12. He repeated this concession at oral argument. Thus, the fact that Burbank may impose a curfew to address an outbreak in cases of COVID-19 is outside the scope of this action.
After the briefing was completed in this case, the U.S. Supreme Court issued a decision in Roman Catholic Diocese of Brooklyn v. Cuomo , ––– U.S. ––––, 141 S.Ct. 63, 208 L.Ed.2d 206 (2020). Plaintiff relies on this case in claiming that his lawsuit is not moot. Dkt. No. 44. In Roman Catholic Diocese , the Supreme Court enjoined an executive order by the New York Governor that restricted attendance at religious services in certain designated areas ("red and orange zones"). ––– U.S. at ––––, 141 S.Ct. 63, 2020 WL 6948354 at *1. The challenged order treats various secular activities (e.g., factories and schools) "less harshly" than religious activities (e.g., church and synagogue services), triggering strict constitutional scrutiny. Id. at ––––, 141 S.Ct. 63, 2020 WL 6948354 at *2. During the litigation, the New York Governor reclassified the areas in which the plaintiffs provide religious services from orange to yellow, thereby increasing the occupancy limits. The Supreme Court nonetheless concluded that the case was not moot because the plaintiffs "remain under a constant threat that the area in question will be reclassified as red or orange." Id. at ––––, 141 S.Ct. 63, 2020 WL 6948354 at *3. In contrast, Plaintiff in this case has shown only that the type of order he attacks is "rare." Thus, the threat of recurrence is remote, and not ever-present as in Roman Catholic Diocese .
In short, Price has not shown that Burbank has a plan to impose—or has engaged in a pattern of imposing—curfews targeting protests, such that there is a sufficient likelihood of a future curfew order that will adversely affect him. It is not enough to suggest that protests will occur. They already have occurred during turbulent times for months following the expiration of the challenged curfew without a further curfew order. This does not mean that the Court can be sure that Burbank will not do it again. It means only that the mootness doctrine requires Price to prove a "sufficient likelihood" of recurrence for this lawsuit to continue, and he has not done so on this record and in light of his limited claims. While Price has brought suit to vindicate important liberty interests, the injunctive and declaratory relief he seeks are unavailable to address an act that has ceased. Absent a showing of likely repetition, the Court has no authority to act. Thus, the Court GRANTS WITH PREJUDICE Burbank's motion to dismiss as to Price's claims for injunctive and declaratory relief against Burbank.
The motion is granted with prejudice because Plaintiff seeks only equitable relief that is unavailable in light of the Court's ruling. Plaintiff has not requested leave to amend or suggested that he could assert a viable claim if granted leave.
IV. PRICE'S MOTION FOR PRELIMINARY INJUNCTION
Price's motion for preliminary injunction against Burbank and the County cannot prevail when his lawsuit fails or likely will fail.
The purpose of a preliminary injunction is to preserve the status quo and the rights of the parties until a final judgment on the merits can be rendered. See U.S. Philips Corp. v. KBC Bank N.V. , 590 F.3d 1091, 1094 (9th Cir. 2010). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
Here, the Court has dismissed the claims against Burbank, and thus no relief, either preliminary or permanent, is available to Price against Burbank. The Court also declines to grant a preliminary injunction against the enforcement of the County's curfew order. Because Price's claims against the County are essentially identical to the nonviable claims against Burbank, he has not demonstrated the likelihood of success on the merits. Moreover, Price concedes that his challenge to the curfew order is limited to one targeting protests and does not extend to one that may be issued to address the pandemic or other health crisis. Because the challenged curfew order is not in effect, Price cannot show he will suffer irreparable harm in the absence of preliminary relief. Caribbean Marine Servs. Co. v. Baldrige , 844 F.2d 668, 674 (9th Cir. 1988) (noting "a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief").
Thus, the Court DENIES Price's motion for preliminary injunction.
V. CONCLUSION
For these reasons, the Court:
• GRANTS Burbank and the County's requests for judicial notice;
• GRANTS WITH PREJUDICE Burbank's motion to dismiss Price's first amended complaint as to Burbank; and
• DENIES Price's motion for preliminary injunction as to both Burbank and the County.