Vivid Entertainment LLC et al v. Jonathan Fielding et al
Filing
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ORDER DENYING PLAINTIFFS MOTION FOR RECONSIDERATION 63 by Judge Dean D. Pregerson. (lc). Modified on 8/2/2013 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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VIVID ENTERTAINMENT, LLC;
CALIFA PRODUCTIONS, INC.;
JANE DOE a/k/a KAYDEN KROSS,
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Plaintiffs,
v.
JONATHAN FIELDING, DIRECTOR
OF LOS ANGELES COUNTY
DEPARTMENT OF PUBLIC HEALTH;
JACKIE LACEY, LOS ANGELES
COUNTY DISTRICT ATTORNEY,
and COUNTY OF LOS ANGELES,
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Defendants.
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Case No. CV 13-00190 DDP (AGRx)
ORDER DENYING PLAINTIFFS’ MOTION
FOR RECONSIDERATION
[Docket No. 63]
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I. Introduction
On November 6, 2012, Los Angeles County approved Measure B,
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which requires producers of adult films to obtain a permit from the
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Los Angeles County Department of Public Health before production
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can take place.
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use of condoms by performers for all acts of anal or vaginal sex
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during the production of adult films. (Id. ¶ 42.)
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Entertainment, LLC (“Vivid”), Califa Productions, Inc., Jane Doe,
(Compl. ¶¶ 36, 41.)
Measure B also requires the
Plaintiffs Vivid
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and John Doe are in the adult film industry.
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Plaintiffs have sued Jonathan Fielding, Director of Los Angeles
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County Department of Public Health; Jackie Lacie, Los Angeles
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County District Attorney; and County of Los Angeles (the “County
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Defendants”) for Declaratory and Injunctive Relief, claiming that
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Measure B is unconstitutional.
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Defendants have declined to defend Measure B’s constitutionality.
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(Order at 9.)
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enforcing Measure B.
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(Id. ¶¶ 10-11.)
(See generally id.)
The County
The County, however, has taken steps to begin
(Docket No. 56 Ex. 1.)
On April 16, 2013 this Court granted Michael Weinstein,
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Marijane Jackson, Arlette De La Cruz, Mark McGrath, Whitney
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Engeran, the Campaign Committee Yes on B, and Major Funding by the
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AIDS Healthcare Foundation’s (“Interveners”) Motion to Intervene.
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(See generally Order Granting Motion to Intervene (“Order”), Docket
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No. 44.)
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they “drafted the language that would become Measure B, collected
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signatures to qualify the Measure for the November 2012 ballot,
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submitted the signatures for verification, raised funds, and
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drafted an argument for the appearance of the Measure on the
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ballot.”
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“Interveners were the official proponents of Measure B;”
(Order at 2.)
In light of the recent Supreme Court decision in
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Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), Plaintiffs have
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filed a Motion to Reconsider (“Motion”) this Court’s Order.
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(Docket No. 63)
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II. Legal Standard
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Local Rule 7-18 provides the framework under which non-final
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judgments may be reconsidered.
In relevant part, it states that
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reconsideration is appropriate when there is a “material difference
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in fact or law from that presented to the Court before such
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decision that in the exercise of reasonable diligence could not
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have been known to the party moving for reconsideration at the time
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of such decision.”
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III. Analysis
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In Perry the Supreme Court held that the interveners, who were
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also Proposition 8's proponents, did not have standing to appeal
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the district court’s judgment.
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Plaintiffs claim that Perry requires Interveners to show they have
Perry, 133 S. Ct. at 2668.
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standing independent of the County Defendants.
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disagrees.
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The Court
In Perry, as here, the government officials, who were named as
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defendants enforced but “refused to defend the law.”
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The district court allowed Proposition 8's proponents to intervene.
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Id.
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unconstitutional, the defendants elected not to appeal to the Ninth
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Circuit, but the Interveners did.
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vacated the Ninth Circuit’s ruling because the Interveners did not
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have standing to appeal the district court.
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Supreme Court made clear that initiative proponents do not have
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standing to defend their ballot measures after those measures
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become law.
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voters, the measure became a duly enacted constitutional amendment
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or statute.
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enforcement of Proposition 8.”) (internal quotation marks and
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citations omitted).
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court’s judgment intact.
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approved of the framework currently at issue: at the district court
Id. at 2660.
When the district court declared Proposition 8
Id.
The Supreme Court later
Id. at 2668.
The
Id. at 2663 (“[O]nce Proposition 8 was approved by the
Petitioners have no role—special or otherwise—in the
However, the Supreme Court, left the district
Id. at 2668.
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In so doing, it implicitly
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level, intervention by initiative proponents is proper when the
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government is enforcing the initiative but refuses to defend it,
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regardless of whether the interveners have standing independent of
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the government defendants.
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Additionally, as the Order recognized, Ninth Circuit
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precedent, though somewhat ambiguous, generally indicates that
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interveners are not required to demonstrate Article III standing
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independent of the defendants.
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California Dep't of Soc. Servs. v. Thompson, 321 F.3d 835, 846 (9th
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Cir. 2003) (“Ms. Rosales did not need to meet Article III standing
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requirements to intervene.”)
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theory or reasoning underlying the prior circuit precedent in such
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a way that the cases are clearly irreconcilable,” the Court must
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follow the Ninth Circuit precedent.
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889, 900 (9th Cir. 2003).
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must have independent standing to bring an appeal that the
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government defendants decline to, it did not undercut prior
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authority indicating that interveners do not need to establish
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independent standing at the district court level.
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(Order at 4-5); see State of
Thus, unless Perry “undercut the
Miller v. Gammie, 335 F.3d
Because Perry only held that interveners
Finally, denying intervention in this case would upend one of
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the key purposes of standing doctrine.
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required is to “sharpen[ ] the presentation of issues upon which
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the court so largely depends for illumination of difficult ...
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questions.”
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Interveners, there would still be standing to resolve this case
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because the County is enforcing Measure B.
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Windsor, 133 S. Ct. 2675, 2685 (2013) (“Even though the Executive's
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current position was announced before the District Court entered
One reason standing is
Baker v. Carr, 369 U.S. 186, 204 (1992).
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Even without
See United States v.
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its judgment, the Government's agreement with Windsor's position
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would not have deprived the District Court of jurisdiction to
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entertain and resolve the refund suit; for her injury (failure to
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obtain a refund allegedly required by law) was concrete,
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persisting, and unredressed.”)
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defend Measure B’s constitutionality, Interveners are needed to
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sharpen the issues this Court will be required to answer.
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III. Conclusion
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Because the Defendants refuse to
For the reasons stated herein, the Motion is DENIED.
IT IS SO ORDERED.
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Dated: August 2, 2013
DEAN D. PREGERSON
United States District Judge
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