First Resort, Inc. v. Herrera et al

RESPONSE

N.D. Cal.February 23, 2012

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 1 OPPOSITION TO MOTION TO DISMISS Stephen A. Tuggy (SBN 120416) stuggy@lockelord.com Michelle C. Ferrara (SBN 248133) mferrara@lockelord.com Kelly S. Biggins (SBN 252515) kbiggins@lockelord.com LOCKE LORD LLP 300 South Grand Avenue, Suite 2600 Los Angeles, California 90071 Tel: (213) 485-1500 Fax: (213) 485-1200 Attorneys for Plaintiff FIRST RESORT, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA FIRST RESORT, INC., Plaintiff, vs. DENNIS HERRERA, in his official capacity as City Attorney of the City of San Francisco; BOARD OF SUPERVISORS OF THE CITY AND COUNTY OF SAN FRANCISCO; and THE CITY AND COUNTY OF SAN FRANCISCO, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-5534 FIRST RESORT’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Motion to Dismiss Hearing Date: May 8, 2012 Time: 1:00 p.m. Dept: Courtroom of the Hon. Saundra B. Armstrong Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page1 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 2 OPPOSITION TO MOTION TO DISMISS TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................1 II. STANDARD OF REVIEW ON A MOTION TO DISMISS .................................................3 III. DEFENDANTS’ MOTION TO DISMISS FIRST RESORT’S VOID-FOR- VAGUENESS CLAIM IS WITHOUT MERIT. .................................................................4 A. The Ordinance is Impermissibly Vague .............................................................5 B. Defendants’ Reliance on Section 17500 is Misplaced. ..................................................7 IV. DEFENDANTS’ MOTION TO DISMISS FIRST RESORT’S EQUAL PROTECTION CLAIM IS WITHOUT MERIT. ................................................................9 A. First Resort Has Alleged That The Ordinance Burdens A Fundamental Right Triggering Strict Scrutiny Review. ....................................................................10 B. Even if Rational Basis Review Were Somehow Applied, Judgment Could Not Be Rendered Under a 12(b)(6) Motion. ...........................................................12 V. DEFENDANTS’ MOTION TO DISMISS FIRST RESORT’S PREEMPTION CLAIM IS WITHOUT MERIT. ......................................................................................13 VI. CONCLUSION ...............................................................................................................15 Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page2 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 i OPPOSITION TO MOTION TO DISMISS Table of Authorities Page(s) State Cases Abbott v. City of Los Angeles, 53 Cal.2d 674 (1960) ....................................................................................................15 Bernardo v. Planned Parenthood Fed’n of Am., 115 Cal.App.4th 322 (2004) .......................................................................................8, 9 O’Connor v. Super. Ct., 177 Cal.App.3d 1013 (1986) ......................................................................6, 8, 9, 14, 15 People v. Super. Ct. (Caswell), 46 Cal.3d 381 (1988) ......................................................................................................4 In re Portnoy 21 Cal.2d 237, 131 P.2d 1 (1942) ..........................................................................13, 14 Rezec v. Sony Pictures Entm’t, Inc., 116 Cal.App.4th 135 (2004) .........................................................................................14 Sherwin-Williams Co. v. City of Los Angeles, 4 Cal.4th 893 (1993) ...........................................................................................3, 13, 14 Federal Cases Ashcroft v. ACLU, 542 U.S. 656 (2004) ......................................................................................................10 Buckey v. County of Los Angeles, 968 F.2d 791 (9th Cir. 1992) ..........................................................................................3 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ......................................................................................................13 City of Boerne v. Flores, 521 U.S. 507 (1997) ......................................................................................................10 City of New Orleans v. Dukes, 427 U.S. 297 (1976) ........................................................................................................9 Connally v. Gen. Const. Co., 269 U.S. 385 (1926) ........................................................................................................4 Dura Pharm., Inc. v. Broudo, 544 U.S. 336 (2005) ........................................................................................................4 Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page3 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 ii OPPOSITION TO MOTION TO DISMISS Gitlow v. People of New York, 268 U.S. 652 (1925) ........................................................................................................9 Grayned v. City of Rockford, 408 U.S. 104 (1972) ........................................................................................................5 Hearns v. Terhune, 413 F.3d 1036 (9th Cir. 2005) ....................................................................................3, 4 Hill v. Colorado, 530 U.S. 703 (2000) ....................................................................................................2, 4 Lovell v. City of Griffin, 303 U.S. 444 (1938) ........................................................................................................9 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) ......................................................................................................10 Reno v. Flores, 507 U.S. 292, 302 (1993) ....................................................................................................10 Riley v. Natl. Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781 (1988) ......................................................................................................11 Sagana v. Tenorio, 384 F.3d 731 (9th Cir. 2004) ......................................................................................3, 9 Smith v. California, 361 U.S. 147 (1960) ........................................................................................................9 Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) ......................................................................................................11 United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir. 1995) ..........................................................................................9 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 .................................................................................................................10 Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ........................................................................................................4 Washington v. Glucksberg, 521 U.S. 702 (1997) ..................................................................................................9, 10 / / / / / / / / / Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page4 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 iii OPPOSITION TO MOTION TO DISMISS Statutes California Business and Professions Code section 2271 ..........................................................14 California Business and Professions Code section 17200 .........................................................8, 15 California Business and Professions Code section 17500 .................................2, 3, 7, 8, 134, 15 California Penal Code, section 330a ..................................................................................14 Federal Rule of Civil Procedure 8(a)(2) ...............................................................................3 Federal Rule of Civil Procedure 12(b)(6) ...........................................................1, 2, 3, 4, 12 Ordinance San Francisco Adminstrative Code, ch. 93, sections 93.1-93.5 ............................................. passim Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page5 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 1 OPPOSITION TO MOTION TO DISMISS I. INTRODUCTION The Board of Supervisors for the City and County of San Francisco adopted an ordinance entitled the “Pregnancy Information Disclosure and Protection Ordinance” (the “Ordinance”), effective as of December 4, 2011. S.F. Admin. Code, ch. 93, §§ 93.1-93.5 (Compl. Ex. 1). Plaintiff First Resort, Inc. filed this action challenging the constitutionality of the Ordinance on four grounds: violation of First Resort’s free speech rights based on viewpoint discrimination (Count I); violation of First Resort’s free speech and due process rights based on the chilling effect of the Ordinance’s vague terms (Count II); violation of First Resort’s right to equal protection (Count III); and state law preemption (Count IV). Defendants’ 12(b)(6) motion (the “Motion”) does not address Count I but contends that Counts II through IV fail to allege facts sufficient to state a claim. For the reasons explained below, Defendants’ motion is without merit and should be denied. First Resort is a non-profit organization that provides information and related medical services, free of charge, to pregnant women who are considering the abortion option. (Compl. ¶ 1.) The core of what First Resort does is, therefore, non-commercial speech regarding matters that are both highly private and the subject of vigorous debat in the public square. The purpose of the Ordinance is to destroy or minimize First Resort’s ability to communicate its ideas to its intended audiences. (Compl. ¶¶ 19-20.) Defendants designed the Ordinance to accomplish this objective by, among other things, imposing unconstitutionally vague restrictions on First Resort’s speech; authorizing Draconian penalties for any violation, no matter how trivial; and denying First Resort equal protection by exempting those with differing messages and viewpoints from the Ordinance, purposefully to create a seriously unbalanced playing field. (Compl. ¶¶ 29-35.) In Count II, First Resort has alleged facts sufficient to state a claim that the Ordinance is unconstitutionally vague. The Ordinance, which is attached to the Complaint, is impermissibly vague in virtually every material respect. It fails to define the scope of a pregnancy service center’s speech that is regulated, what speech will be deemed “ isleading,” what statements about its services contain an “omission” resulting in an “impliedly offered” service that is actually not provided, who may be penalized for a violation, andwhat “per violation” means. (Compl. ¶¶ 25, 30, 34, and 43; Compl. Ex. 1.) As will be shown below, the Ordinance is void for vagueness both Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page6 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 2 OPPOSITION TO MOTION TO DISMISS because “it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” and it “authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). Defendants’ argument that the Ordinance mirrors California Business and Professions Code section 17500 (“Section 17500”) actually makes First Resort’s point. While Section 17500 may not be impermissibly vague in the commercial context, California courts have found Section 17500 inapplicable to non-commercial speech expressly recognizing that the statute would be unconstitutionally vague if used to regulate non-commercial speech. Where, as here, the ordinance has an inhibiting effect on speech, the courts apply a more stringent void-for-vagueness test under which the Ordinance fails. In addition, First Resort will show below that Defendants, when drafting the Ordinance, added a number of terms to the text th y copied from Section 17500 that make the Ordinance even more impermissibly vague. In Count III, First Resort has alleged facts sufficient to state a claim that the Ordinance violates First Resort’s rights to equal protection. As alleged in the Complaint, the Ordinance classifies pregnancy service centers based on their sp ech (i.e., whether they refer clients to abortion providers) and their conscience (i.e., whether theyrefuse to perform abortions or refer clients to abortion providers as a matter of conscience). (Compl. ¶¶ 19-24, 27, 29-31, and 47-48.) Both are classifications based on fundamental rights and are, as such, subject to strict scrutiny. That is, Defendants must show (1) an actual compelling governm nt interest that would justify the classifications in the Ordinance; (2) the Ordinance is narrowly tailored to its purported goals; and, (3) no less restrictive means exist for achieving those goals. Defendants will not be able to satisfy this standard, and certainly cannot do so in a 12(b)(6) motion. Defendants contend the statutory classification at issue is “based on what health or health- related services” are offered, which they argue “does not implicate any suspect classification.” (Motion, p. 8, lines 23-24.) Whether the classificat on is based on speech, conscience, or “what . . . health-related services they offer” is an issue not suited for decision in a 12(b)(6) motion. For the purposes of the 12(b)(6) motion, First Resort’s allegations that the classification is based on free speech rights and the right of conscience (i.e., th right of a health care provider not to participate in Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page7 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 3 OPPOSITION TO MOTION TO DISMISS abortions) trigger the application of strict scrutiny, which Defendants cannot satisfy. Moreover, even if the rational basis standard applied, which it does not, Defendants cannot establish a rational basis for the classification in a 12(b)(6) motion. First Resort is entitled to prove the Ordinance dos not satisfy the strict scrutiny standard, or even the rational basis standard advocated by Defendants. Finally, to the extent Defendants contend First Resort’s speech is “commercial,” and further contend that the Ordinance is constitutional as applied to commercial speech, the Ordinance is clearly preempted by Section 17500. Defendants admit the Ordinance copied the text of that statute. (Motion, p. 5, lines 11-12.) Under California law, hen a local ordinance “duplicates” a state statute, the ordinance is preempted. Sherwin-Williams Co. v. City of Los Angeles, 4 Cal.4th 893, 897-98 (1993). If Defendants contend the Ordinance ext nds Section 17500 by applying that law to non-commercial speech, then the Ordinance is unconstitutionally vague, as explained above. In addition, the Ordinance would be preempted in any event because Defendants are attempting to regulate in an arena the state Legislature has, for First Amendment reasons, intentionally left unregulated by Section 17500. II. STANDARD OF REVIEW ON A MOTION TO DISMISS The Federal Rules of Civil Procedure require that a complaint include “a short and plain statement of the claim showing that the pleader is ntitled to relief.” Fed. R. Civ. P. 8(a)(2). The intent of Rule 8(a)(2) is to require that the complaint give fair notice to defendant of what plaintiff's claim is and the grounds upon which it rests. Sagana v. Tenorio, 384 F.3d 731, 736-737 (9th Cir. 2004) (“all that is required is that the plaintiff give ‘fair notice’ of the claim and its basis. […] A party need not plead specific legal theories, so long as the other side receives notice as to what is at issue in the case”). In reviewing a motion to dismiss under Rule 12(b)(6), courts must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). Civil rights complaints are to be liberally construed. Buckey, 968 F.2d at 794. The issue is not whether a plaintiff will ultimately prevail, but whether it is entitled to offer evidence to support its claims. Hearns v. Terhune, 413 F.3d 1036, 1043 (9th Cir. 2005). “Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page8 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 4 OPPOSITION TO MOTION TO DISMISS test.” Id. A complaint should not be dismissed under 12(b)(6) if there is “a reasonably founded hope that the [discovery] process will reveal relevant evidence.” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 374 (2005) (citations omitted). III. DEFENDANTS’ MOTION TO DISMISS FIRST RESORT’S VOID-F OR- VAGUENESS CLAIM IS WITHOUT MERIT. “A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill , 530 U.S. at 732; see also Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-499, 503 (1982); Connally v. Gen. Const. Co., 269 U.S. 385, 391-393 (1926). Where, as here, an ordinance has a potentially inhibiting effect on speech, the Court will apply a more strict vagueness test: [P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply. Vill. of Hoffman Estates, 455 U.S. at 498-499; see also People v. Super. Ct. (Caswell), 46 Cal.3d 381, 391 n.2 (1988). The purpose of the vagueness doctrine is to protect free speech by providing clear notice to those subject to government edicts what speech is prohibited and what speech is permitted: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to st er between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not pr viding fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page9 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 5 OPPOSITION TO MOTION TO DISMISS impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abut(s) upon sensitive areas of basic First Amendment freedoms, it ‘operates to inhibit the exercise of (those) freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked. Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972) (internal citations a d quotations omitted). The Ordinance violates these basic principles of due process as described below. A. The Ordinance is Impermissibly Vague The key provisions of the Ordinance are those that define a “violation” (Ord. § 93.4) and those that proscribe “penalties” for violations (Ord. § 93.5(c)). Both provisions are impermissibly vague. First, as Defendants’ own briefing illustrates, a person of ordinary intelligence cannot determine the scope of regulated speech. The Ordinance states that it extends to “any statement, concerning [pregnancy-related] services” that is “di seminated before the public in the City” or “disseminated from the City before the public anywhere.” (Ord. § 93.4(a).) In Defendants’ motion, they erroneously characterize the scope of the Ordinance as a regulation of only “advertising” (e.g. Motion, p. 2, line 21). By its terms, however, theOrdinance could apply to virtually any speech by First Resort, including statements made to its financi l supporters for fundraising purposes, statements made to legislative bodies relating to matters of interest to First Resort, statements made in interviews by the press, and the list could go on. The only mention of “advertising” in Section 93.4(a) is a passing reference to an “advertising device.” That Defendants apparently believed the Ordinance was limited only to “advertising” (as if even that term is sufficiently clear) shows persons of “ordinary intelligence,” such as Defendants, are not clear about what the Ordinance actually says. Second, a person of ordinary intelligence cannot determine the scope of what speech will be deemed “misleading.” According to the Ordinance, it is violated by “any statement . . . concerning any circumstance or matter of fact connected with the proposed performance or disposition [of Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page10 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 6 OPPOSITION TO MOTION TO DISMISS pregnancy-related services] which is . . . misleading.” (Ord. § 93.4(a).) If First Resort states in a public meeting of supporters that it provides “state-of-the-art” ultrasound services but the machine used is not the most recent technology, has First Re ort just violated the Ordinance? This is but one example of thousands where the breathtaking sweep of the Ordinance sweeps in obviously protected speech that should never be the subject of prosecution, but which could be used as a basis for the City Attorney to trigger the application of the Ordinance and its Draconian penalty provisions. In addition, the Ordinance has no materiality or reliance requirement - any statement, no matter how trivial, can be used as a basis for prosecution. Third, a person of ordinary intelligence cannot possibly know what speech is regulated when the Ordinance makes it unlawful for a regulated pregnancy service center to, by “omission,” engage in a “plan or scheme with the intent not to perform the services . . . impliedly offered . . . .” (Ord. § 93.4(a) and (b).) When is it that a pregnancy servic center “impliedly” offers a service by failing to state it does not provide the service? For example, if a pregnancy service center has a street sign at its office that states “Pregnancy Services Available Here,” does that “impliedly” offer abortions and is it misleading to fail to state in the sign, “But Not Abortions”? Again, the permutations of a prohibition based on “omission” and “impliedly offered” services are legion and it is impossible to determine from the Ordinance which statements will be violations and subject to prosecution.1 Fourth, a person of ordinary intelligence cannot know who might be punished by the Ordinance’s “penalty” provisions. While the Ordinance purports to regulate only “limited services pregnancy centers,” the penalty provision allows Defendants to “recover civil penalties from each and every party responsible for the violation . . . .” (Ord. § 93.5(c).) Again, just by way of example, if a regulated pregnancy service center retains a public relations firm to prepare materials for dissemination to the public regarding the services provided and the City Attorney deems the materials “misleading,” is the public relations firm a “responsible” party? Whatever the answer 1 The terms “misleading” and “impliedly” are themselves subjective and elusive in meaning. What may be “impliedly offered” or “misleading” to one person may not be so considered by another. S e O’Connor v. Super. Ct., 177 Cal.App.3d 1013, 1019 (1986) (“[A]n action uder Business and Professions Code only requires that a statement be ‘unfair’ or ‘misleading.’ These are subjective concepts, which vary according to the political viewpoint of the listener.”) Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page11 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 7 OPPOSITION TO MOTION TO DISMISS might ultimately be, the risk of such a determination will deter public relations firms from working with regulated pregnancy centers. This same problem extends to volunteers, employees, Board members, and other constituents of regulated pregnancy service centers. Fifth, a person of ordinary intelligence cannot know the meaning of the Ordinance’s penalty provision, which provides for a “per violation” penalty of between $50 and $500. In the non- commercial speech context, what is a “per violation” penalty? Defendants can certainly point to no statute or ordinance anywhere where such a restriction on non-commercial speech has been constitutionally imposed. For example, if the “misleading” statement is in a flyer, is the “per violation” penalty imposed for each time the flyer is handed to a member of the public? If the “misleading” statement is a on a web page, is it the number of times that web page was visited? If the statement is in a YouTube video, is it the number of times users clicked on the video? While each of these ambiguities, among others, in the Ordinance creates broad restrictions on speech, the parameters of which a person of ordinary telligence cannot know, they also carry the vice of allowing arbitrary and discriminatory enforcement, a particular danger for First Resort in this case. (Compl. ¶ 14 and Ex. 2.) Because the scope of otentially regulated speech is so undefined, includes “omissions” and what is being said by implication (“impliedly”), with no materiality requirement whatsoever, the City Attorney could attack a regulated pregnancy service center using the Ordinance for virtually any statement the pregnancy service center makes to any members of the “public,” with which the City Attorney disagrees, about abortion, pregnancy, pregnancy services, or any other number of related subjects. In addition, the City Attorney can arbitrarily target the penalty provisions of the Ordinance at any number of individuals associated with a regulated pregnancy service center, depending on how punitive the City At orney (and his political allies) seek to be. B. Defendants’ Reliance on Section 17500 is Misplaced. Defendants argue the Ordinance is not void for vagueness because its terms are “almost identical” to Section 17500, which Defendants say courts have enforced, “finding no vagueness problem.” (Motion, p. 5, line 20.) Defendants further cite a string of cases where false advertising statutes governing commercial speech were deemed sufficiently clear to pass constitutional muster. (Id. at pp. 5-7.) By focusing on commercial speech, Defendants have missed the point. Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page12 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 8 OPPOSITION TO MOTION TO DISMISS First Resort has alleged its speech is non-commercial (e.g., Compl. ¶ 21). While Section 17500 may be constitutional as applied to commercial advertising, it most certainly would not be constitutional if applied to non-commercial speech. O’Connor, 177 Cal.App.3d at 1019. In O’Connor, the plaintiff brought a claim against election opp nents alleging the defendants had violated California Business and Professions Code sections 17200 and 17500 by attributing false statements regarding plaintiff to well-known person. The Court of Appeal held Sections 17200 and 17500 did not apply to non-commercial speech and doing so would render them unconstitutional: It should be noted that if the statutes were held to apply to the political arena, their broad sweep would probably render them fatally defective. Sections 17200 et seq. and 17500 et seq. provide no standards by which First Amendment conduct is to be regulated. Because the statutes are not narrowly drawn to reflect a considered legislative judgment concerning the scope of permissible regulation of political speech, it appears the statutes were not designed to regulate conduct in a political campaign. Id. (emphasis added). Bernardo v. Planned Parenthood Fed’n of Am., 115 Cal.App.4th 322 (2004) is instructive. In Bernardo, plaintiffs asserted a claim under Sections 17200 and 17500 that Planned Parenthood - an exempted entity under the Ordinance - had made false and misleading statements regarding the safety of abortion. The Court of Appeal rejected the application of Sections 17200 and 17500 to Planned Parenthood because its speech was non-commercial: Bernardo cannot show a probability of prevailing on the merits of her claims because her own evidence shows Planned Parenthood’s challenged speech regarding the central disputed issue of whether induce abortion causes breast cancer was noncommercial speech entitled to full First Amendment protection, and thus was not actionable under Busines and Professions Code sections 17200 or 17500. Id. at 343 (emphasis added). Thus, if First Resort we e to disseminate statements asserting abortion increased the incidence of breast cancer, the City Attorney could very well seek to prosecute First Resort under the Ordinance, while under B nardo, Planned Parenthood could make statements on Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page13 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 9 OPPOSITION TO MOTION TO DISMISS the exact same subject to the contrary, completely unregulated. This risk of discriminatory enforcement brings us to the Ordinance’s equal protecti n problem.2 IV. DEFENDANTS’ MOTION TO DISMISS FIRST RESORT’S EQUAL PROTECTION CLAIM IS WITHOUT MERIT. Equal protection claims are assessed using a two-step analysis. First, the plaintiff must show that the statute or ordinance in question “results in members of a certain group being treated differently from other persons based on membership in that group.” United States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir. 1995). Both First Resort and Defendants agree the first step of the analysis is satisfied: the Ordinance creates a classification that results in the regulation of pregnancy service centers that do not perform or refer for abortions and exempts from regulation all pregnancy service centers that either perform abortions or refer to abortion providers. Second, the court must determine “the legitimacy of a discriminatory statute under the appropriate level of scrutiny.” Sagana v. Tenorio, 384 F.3d 731, 740 (9th Cir. 2004). The highest level of scrutiny, known as “strict scrutiny,” applies where a statute or ordinance discriminates on the basis of a fundamental right. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“Unless a classification trammels fundamental personal rights or i drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions pre ume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.”); Washington v. Glucksberg, 521 U.S. 702, 719-721 (1997) (“heightened protection” extended to certain fundamental rights; i.e., those that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed”). Freedom of speech is one such protected “fundamental right.” Gitlow v. People of New York, 268 U.S. 652, 666 (1925); Lovell v. City of Griffin, 303 U.S. 444, 450 (1938); Smith v. California, 361 U.S. 147, 149-150 (1960). First Resort also contends its 2 First Resort notes that Defendants’ attempt to argue for a lenient vagueness standard on the ground the Ordinance does not impose criminal liability (Motion, p. 4, lines 22-26) is wrong, both because under O’Connor and Bernardo the touchstone for application of the more stringent standard is whether the speech is commercial or non-commercial, and also because the Ordinance’s penalty provisions are so vague (as explained above) they could be applied in a more severe way than even a violation of many criminal laws. Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page14 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 10 OPPOSITION TO MOTION TO DISMISS right of conscience not to participate in abortions is an additional fundamental right implicated by the Ordinance. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992) (“At the heart of [the] liberty [protected by the Fourteenth Amendment] is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”); Glucksberg, 521 U.S. at 720 (in addition to enumerated freedoms protected by Bill of Rights, the “liberty” specially protected by the Due Process Clause includes, among other things, rights to marry, have children, direct the education and upbringing of one’s children, marital privacy, use contraception, bodily integrity, and abortion). To satisfy strict scrutiny, Defendants must show (1) an actual compelling government interest that would justify the Ordinance; (2) the Ordinance is narrowly tailored to its purported goals; and, (3) no less restrictive means exist for achieving those goals. United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 817; Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); Glucksberg, 521 U.S. at 720-721 (fundamental right may not be infringed “at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest”) (citing Reno v. Flores, 507 U.S. 292, 302 (1993)). Defendants’ burden is “the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (superseded by statute on other grounds). Based on the allegations of the Complaint, the Ordinance discriminates on the basis of, and burdens, fundamental rights, triggering strict scrutiny. Defendants have, for good reason, not even attempted to satisfy that test. A. First Resort Has Alleged That The Ordinance Burdens A Fundamental Right Triggering Strict Scrutiny Review. Defendants argue that First Resort’s Complaint “fails to identify the fundamental right allegedly burdened by the Ordinance.” (Motion, p. 7, lines 24-25.) Defendants’ argument is so far off the mark it can only be because they failed to recognize that First Resort’s equal protection claim (Count III) incorporates by reference paragraphs 1 through 37, 39 through 41, and 43 through 45, of the Complaint. (Compl. ¶ 46.) First Resort has clearly alleged that the classifications in the Ordinance burdens its fundamental rights of free speech and conscience. Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page15 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 11 OPPOSITION TO MOTION TO DISMISS The Ordinance burdens free speech by imposing broad and burdensome regulation of the speech of pregnancy service centers based entirely upon what those centers do or do not say to their clients. Specifically, if a pregnancy service center states to its clients where those clients can obtain abortions, then the pregnancy service center is exempt from the Ordinance and unregulated. If, on the other hand, a pregnancy service center refuses to make such a statement to its clients, then the pregnancy service center is subject to the Ordinance. (Compl. ¶ 4 at p. 3, lines 18-20; and Ex. 1, pp. 4-5 (Ord. §§ 93.3 (f) and 93.4(a).) Thus, the Ordinance creates a burden on those organizatio s, such as First Resort, who exercise their First Amendment right not to speak. Riley v. Natl. Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781, 796-798 (1988) (“[T]he First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.” […] “content-based regulation is subject to “exacting First Amendment scrutiny.”); Turner Broad. Sys. v. FCC, 512 U.S. 622, 641-642 (1994) (“Government action hat . . . requires the utterance of a particular message favored by the Government, contravenes this essential right” and, if content- based, is subject to the “most exacting scrutiny”). Any pregnancy service center willing to refer clients to abortion providers is, by virtue of that speech, completely exempt from the Ordinance. Thus, while Planned Parenthood and First Resort compete in the same marketplace of ideas, Planned Parenthood’s speech is completely unregulated by the Ordinance while First Resort’s speech is subject to it because Planned Parenthood refers clients to abortion providers. The Ordinance also burdens First Resort’s right of conscience. One reason First Resort does not refer clients to abortion providers is First Resort’s belief that abortion harms the mother and father, their families, and the unborn child. (Compl. ¶ 1.) When First Resort refuses to refer clients to abortion providers, it is exercising its right of c nscience. The Ordinance, however, discriminates against and burdens the exercise of that right of cons ience. Under the Ordinance, any pregnancy service center that will not refer clients to abortion providers is subject to burdensome regulation of its speech. If, on the other hand, the pregnancy service center’s beliefs about abortion are such that it is willing to perform abortions or refer clients to abortion providers, it is exempt. The Ordinance Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page16 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 12 OPPOSITION TO MOTION TO DISMISS therefore burdens First Resort’s right of conscience by making First Resort subject to the burdens of the Ordinance simply because of the exercise of its right of conscience. (Compl. ¶ 1.) Thus, based on the allegations of the Complaint, the classifications in the Ordinance burden both fundamental free speech rights and the right of conscience. Strict scrutiny therefore applies. Defendants have not even attempted to justify the Ordinance under strict scrutiny test because they cannot do so. Defendants have not even attempted to show there is any actual problem in need of solving, that the curtailment of First Resort’s fundamental rights is actually necessary to the solution, or the absence of any less restrictive alternative. As a result, Defendants’ 12(b)(6) motion is without merit. In fact, as will be explained below, even if the Court were to apply a rational basis standard, which it should not, the showing in Defendants’ 12(b)(6) motion would fail. B. Even if Rational Basis Review Were Somehow Applied, Judgment Could Not Be Rendered Under a 12(b)(6) Motion. Defendants contend the only relevant classification in the Ordinance is “between organizations based on what health or health-related services they offer” and that such a classification “does not implicate any suspect classification.” (Motion, p. 8, lines 24-25.) Defendants are wrong. Whether or not the Ordinance classifies in the manner proffered by Defendants, it also classifies based on speech and conscience, as alleged in the Complaint and shown above, triggering strict scrutiny. Nonetheless, even if the Court were to apply the lowest level of scrutiny to a legislative classification (i.e., the “rational basis test”), Defendants’ 12(b)(6) motion would have to be denied. Under the rational basis test, Defendants must show t e classification made in the Ordinance has a rational basis. Defendants’ 12(b)(6) motion fails even this test because Defendants only attempted to show a rational basis for the Ordinance’s prohibition against misleading speech, but provided no rational basis for the classification made between pregnancy services centers that do provide abortions and abortion referrals and those that do not. Thus, Defendants argue in a variety of ways that the Ordinance’s “prohibition on false and misleading advertising” is intended to “prevent women from being delayed in exercising their constitutional right to terminate a pregnancy” (Motion, pp. 9-10), but cannot explain why abortion Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page17 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 13 OPPOSITION TO MOTION TO DISMISS providers or organizations that refer clients to abrtion providers should be exempted. Just by way of example, if an abortion provider promises same-day appointments in its advertising but when a woman calls she is given an appointment seven days later and told the delay is harmless, the delay experienced by that woman would be much longer thanany delay possible at First Resort. (Compl. ¶ 18.) See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 (1993) (“A law cannot be regarded as protecting an interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.”) Defendants have not articulated any rational basis for exempting pregnancy service centers that perform abortions or refer clients to abortion providers from the regulatory burden of the Ordinance. As First Resort has alleged, the exemption was made not to protect women, but to protect those organizations whose speech is approved by Defendants. (Compl. ¶¶ 18 and 27.) There is no rational basis for such a classification. V. DEFENDANTS’ MOTION TO DISMISS FIRST RESORT’S PREEMP TION CLAIM IS WITHOUT MERIT. Defendants tacitly admit the Ordinance is preempted by Section 17500. In their Motion, Defendants state that “[t]he terms of the Ordinance are almost identical to those of the California false advertising statute, Business and Professions C de section 17500.” (Motion, p. 5, lines 11-13.) Under California law, when a City or County ordinance duplicates state law, the ordinance is preempted: If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void. [Citations omitted.] A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. [Citations omitted.] Local legislation is ‘duplicative’ of general law when it is coextensive therewith. (See In re Portnoy (1942) 21 Cal.2d 237, 240 [131 P.2d 1] [finding ‘duplication’ where local legislation purported to impose the same criminal prohibition that general law imposed]. Sherwin-Williams Co., 4 Cal.4th at 897-98 (internal quotations omitted). Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page18 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 14 OPPOSITION TO MOTION TO DISMISS In re Portnoy, cited by the California Supreme Court in Sherwin-Williams Co., is virtually indistinguishable from this case. There, Riverside County enacted a gaming control ordinance but “[s]ubstantially the entire text of section 4 of the ordinance is found in Penal Code, section 330a.” In re Portnoy, 21 Cal.2d at 240. As a result, the California Supreme Court found preemption: Thus, the requirement is identical under both the satute and the ordinance with respect to an essential element of the crime, the hazarding of money. It follows that section 4 of the ordinance results in an unconstitutional duplication of section 330a of the Penal Code and is therefore invalid. Id. at 241. In the same way, as the Defendants admit, the ext of the Ordinance has been lifted from Section 17500. The Ordinance is therefore preempted because it “trenches unlawfully on a field reserved exclusively to the State of California.” (Compl. ¶ 51.) Defendants appear to contend First Resort’s speech is governed by Section 17500 by operation of Business and Professions Code section 2271. First Resort also expects Defendants may contend First Resort’s speech is “commercial,” and therefore subject only to limited First Amendment protection. While for the purposes of this motion First Resort denies that Section 17500 applies to its speech, either through the operation of Section 2271 or because the Defendants claim the speech is “commercial,” to the extent Defendants claim First Resort’s speech is “commercial” or otherwise subject to Section 17500, the Ordinance is learly preempted by Section 17500. As explained above, Section 17500 does not apply to First Resort’s speech because its speech is non-commercial. In O’Connor, the Court of Appeal concluded that Section 17500 was not designed by the California legislature to regulate such speech. O’Connor, 177 Cal.App.3d at 1019. It is now well-settled that Section 17500 applies only to commercial speech. Rezec v. Sony Pictures Entm’t, Inc., 116 Cal.App.4th 135, 140 (2004). To the extent Defendants claim the Ordinance adds to Section 17500 by extending it to non-commercial speech, then the Ordinance is both an unconstitutional restriction of non-commercial speech and preempted by the California legislature’s intent to limit Section 17500’s proscriptions to the commercial speech arena. Finally, Defendants attempt to save the Ordinance from preemption by arguing First Resort has asserted only a “facial” challenge to the Ordinance and that there exists a conceivable Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page19 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lo ck e Lo rd L LP 30 0 S ou th G ra nd A ve nu e, S ui te 2 60 0 Lo s A ng el es , C A , 90 07 1- 31 19 15 OPPOSITION TO MOTION TO DISMISS application of the Ordinance to unlicensed pregnancy service centers (unlike First Resort) that would not be preempted. Defendants are wrong on both counts. First, First Resort has asserted a pre- enforcement preemption challenge, not a “facial” challenge. First Resort has standing to bring the challenge to ascertain its rights and obligations uder the Ordinance. Otherwise, First Resort would be put to the risk of an imposition of the penalties provided by the Ordinance before knowing whether the Ordinance is enforceable at all: The theory of these cases was perhaps best expressed by Borchard in his book on Declaratory Judgments (1934) where he pointed out (p. 278) that to exclude examination of penal statutes from the operation of declaratory relief is like ‘telling the prospective victim that the only way to determine whether the suspect is a mushroom or a toadstool is to eat it.’ [Citations omitted.] Abbott v. City of Los Angeles, 53 Cal.2d 674, 678, n. 2 (1960). Second, Defendants’ use of the Ordinance to extend S ction 17500 into a field (non- commercial speech by unlicensed pregnancy service centers) the California legislature intentionally left unregulated does not save the Ordinance from preemption. In that circumstance, the Ordinance conflicts with the California legislature’s intentional limitation on the application of Section 17500 to non-commercial speech. See O’Connor, 177 Cal.App.3d at 1019 (Sections 17200 and 17500 “not designed to regulate” non-commercial speech). VI. CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss should be denied.3 Dated: February 23, 2012 Respectfully submitted, LOCKE LORD LLP By: /s/ Stephen A. Tuggy Stephen A. Tuggy Attorneys for Plaintiff FIRST RESORT, INC. 3 For reasons unclear to First Resort, Defendants asked this Court to take judicial notice of an ethics opinion by the American College of Obstetricians and Gynecologists for the truth of the matters asserted in the opinion. (Motion, p. 2, n. 2.) First Resort objects to the request. The ethics opini n is inadmissible hearsay. The request for judicial notice, like the motion to dismiss, should be denied. Case4:11-cv-05534-SBA Document22 Filed02/23/12 Page20 of 20