Livingwell Medical Clinic, Inc v. Kamala Harris , 669 F. App'x 493 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
LIVINGWELL MEDICAL CLINIC, INC.; No. 15-17497
PREGNANCY CARE CENTER OF THE
NORTH COAST, INC.; CONFIDENCE D.C. No. 4:15-cv-04939-JSW
PREGNANCY CENTER, INC.,
Plaintiffs - Appellants, MEMORANDUM*
v.
KAMALA HARRIS, Attorney General of
the State of California, in her official
capacity; KAREN SMITH, M.D., Director
of California Department of Public Health,
in her official capacity; MICHAEL
COLANTUONO, City Attorney of Grass
Valley, California, in his official capacity;
ALISON BARRAT-GREEN, County
Counsel of Nevada County, California, in
her official capacity; CINDY DAY-
WILSON, City Attorney of Eureka,
California, in her official capacity;
JEFFREY S. BLANCK, County Counsel
of Humboldt County, California, in his
official capacity; CHRISTOPHER A.
CALLIHAN, City Attorney of Salinas,
California, in his official capacity;
CHARLES J. MCKEE, County Counsel of
Monterey County, California, in his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
official capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted June 14, 2016
San Francisco, California
Before: D.W. NELSON, TASHIMA, and OWENS, Circuit Judges.
Livingwell Medical Clinic, Inc., et al. (collectively Livingwell) appeals from
the district court’s denial of their motion for a preliminary injunction to prevent the
enforcement of the California Reproductive Freedom, Accountability,
Comprehensive Care, and Transparency Act (the FACT Act or the Act). We have
jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
1. The district court erroneously imposed a higher than appropriate standard
on the ground that Livingwell’s motion for a preliminary injunction targeted a law.
See Katie A., ex rel. Ludin v. Los Angeles Cty., 481 F.3d 1150, 1155 n.12 (9th Cir.
2007). And to the extent that the district court cited Coalition for Econ. Equity v.
Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (order), as grounds for raising
Livingwell’s burden, this was erroneous. See Indep. Living Ctr. of S. Cal., Inc. v.
2
Maxwell–Jolly, 572 F.3d 644, 658 (9th Cir. 2009), vacated on other grounds by
Douglas v. Indep. Living Ctr. of S. Cal., Inc., 132 S. Ct. 1204 (2012).
This error, however, was harmless because the district court properly denied
the motion for a preliminary injunction. See Nat’l Inst. of Family & Life Advocates
(NIFLA) v. Harris, No. 16-55249, Slip op. at 5 (9th. Cir. 2016).
2. The district court properly found that Livingwell cannot demonstrate a
likelihood of success on the merits of their First Amendment free speech claim.
See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Act
regulates licensed clinics’ professional speech, and is subject to intermediate
scrutiny, which it survives. See NIFLA, Slip op. at 26–34. Because the Act
survives intermediate scrutiny, any error the district court may have made when
applying intermediate scrutiny is harmless. The Act’s notice that applies to
unlicensed clinics survives any level of review. See id. at 34–37.
3. The district court did not improperly place a burden on Livingwell to
prove that the Act did not regulate commercial speech, as Livingwell contends.
Any error would also be harmless as the Act does not regulate commercial speech.
See id. at 18 n.5.
4. Because we affirm the district court’s finding that Livingwell cannot
demonstrate a likelihood of success on their First Amendment claim, thus failing to
3
meet the first, most important Winter factor, see Garcia v. Google, Inc., 786 F.3d
733, 740 (9th Cir. 2015) (en banc), we need not parse their showing under the
remaining Winter factors.1
AFFIRMED.
1
We also conclude that Livingwell have not raised “serious questions”
going to the merits of their claims; thus, the alternate test set forth in Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011), does not
apply.
4