Midway Venture LLC v. County of San Diego ( 2021 )

Filed 2/8/21 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MIDWAY VENTURE LLC et al., D078375
Plaintiffs, Cross-defendants, and
Respondents,
(Super. Ct. No. 37-2020-
v. 00038194-CU-CR-CTL)
COUNTY OF SAN DIEGO et al.,
Defendants and Appellants;
GAVIN NEWSOM, as Governor, etc., ORDER MODIFYING
et al., OPINION AND DENYING
REHEARING.
Defendants, Cross-complainants,
and Appellants. NO CHANGE IN JUDGMENT.
THE COURT:
It is ordered that the opinion filed herein on January 22, 2021 be
modified as follows:
On page 32, footnote 5, the phrases “in this appeal” and “to uphold” are
added to the second sentence, so that the modified sentence reads as follows:
The injunction here, however, was not limited to the prior
scheme, and the adult entertainment businesses have given
no indication in this appeal they seek to uphold such a
limited injunction, which would have no effect on
enforcement of the current Blueprint for a Safer Economy
or the Regional Stay at Home Order.
On page 35, second full paragraph, the phrase “and imply that it
involves ‘vastly different facts and issues’ ” is added to the first sentence, so
that the modified sentence reads as follows:
On the substance, the adult entertainment businesses do
not address Arcara, except to say it is inapplicable and
imply that it involves “vastly different facts and issues”—
without further explanation.
On page 43, at the end of the first paragraph, the following new
footnote 8 is added, which will require renumbering of all subsequent
footnotes:
After we filed our opinion in this appeal, the United States
Supreme Court enjoined the enforcement of some of the
house of worship restrictions at issue in the South Bay
district court proceedings, pending disposition of a related
petition for writ of certiorari. (South Bay United
Pentecostal Church v. Newsom (2021) __ U.S. __ [2021 WL
406258].) However, neither the Supreme Court’s unsigned
order nor its concurring and dissenting opinions call into
question the portion of the South Bay opinion quoted in the
text or our evaluation of this appeal more broadly.
There is no change in the judgment.
Respondents’ petition for rehearing is denied.
HALLER, Acting P. J.
Copies to: All parties
2
Filed 1/22/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MIDWAY VENTURE LLC et al., D078375
Plaintiffs, Cross-defendants, and
Respondents,
(Super. Ct. No. 37-2020-
v. 00038194-CU-CR-CTL)
COUNTY OF SAN DIEGO et al.,
Defendants and Appellants;
GAVIN NEWSOM, as Governor, etc.,
et al.,
Defendants, Cross-complainants,
and Appellants.
APPEALS from an order of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Reversed with directions.
Thomas E. Montgomery, County Counsel, and Jeffrey P. Michalowski,
Deputy County Counsel, for Defendants and Appellants.
Lounsbery Ferguson Altona & Peak, Helen Holmes Peak and Gregory
L. Lusitana, for the City of San Marcos as Amicus Curiae on behalf of
Defendants and Appellants.
Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant
Attorney General, Anthony R. Hakl, Kristin A. Liska and Patty Li, Deputy
Attorneys General, for Defendants, Cross-complainants, and Appellants.
Niddrie Addams Fuller Singh, Victoria E. Fuller, Rupa G. Singh; Vivoli
Saccuzzo, Jason P. Saccuzzo; Law Office of Steve Hoffman and Steve
Hoffman, for Plaintiffs, Cross-defendants, and Respondents.
Wright, L’Estrange & Ergastolo, Robert C. Wright and Andrew E.
Schouten, for the Food & Beverage Association of San Diego County, Inc. as
Amicus Curiae on behalf of Plaintiffs, Cross-defendants, and Respondents.
Caldarelli Hejmanowski Page & Leer LLP, Marisa Janine-Page; Wilson
Elser Moskowitz Edelman & Dicker LLP, Bruno Katz, for 640 Tenth, LP
d/b/a/ Cowboy Star Restaurant and Butcher Shop; O’Frank, LLC d/b/a Home
& Away Encinitas; Fit Athletic Club-San Diego, LLC; and Crossfit East
Village Corporation d/b/a/ Bear Republic, as Amici Curiae on behalf of
Plaintiffs, Cross-defendants, and Respondents.
In this appeal, we consider a preliminary injunction prohibiting the
County of San Diego, its public health officer Wilma J. Wooten, the California
Department of Public Health (CDPH), and Governor Gavin Newsom from
enforcing COVID-19-related public health restrictions against any business
offering restaurant service in San Diego County, subject to safety protocols.
Despite the focus of the injunction—and the interest it generated from third
parties seeking to provide amicus briefs—this lawsuit was never about
restaurant restrictions or the ability to dine outdoors in San Diego County. It
was brought by two San Diego businesses that offer live nude adult
2
entertainment as well as restaurant service. 1 They claimed that State and
County restrictions on live entertainment violated their First Amendment
right to freedom of expression. They were not seeking to open their
restaurants without the live entertainment component of their businesses.
The State and County eventually loosened their restrictions on live
entertainment, but as the COVID-19 pandemic worsened, they imposed new
restrictions on restaurants. These new restaurant restrictions severely
curtailed the adult entertainment businesses’ operations. But these new
restrictions were unrelated to live entertainment or the First Amendment.
Despite the narrow scope of the issues presented, the trial court
granted expansive relief when it issued the injunction challenged here. It
went beyond the claims of the adult entertainment businesses and
invalidated restrictions on restaurants—even though such relief had never
been requested or addressed by the parties.
It is a fundamental aspect of procedural due process that, before relief
can be granted against a party, the party must have notice of such relief and
an opportunity to be heard. Because restaurant restrictions were never part
of the adult entertainment businesses’ claims, the State and County had no
notice or opportunity to address them. The trial court therefore erred by
enjoining the State and County from enforcing COVID-19-related public
health restrictions on restaurants.
1 The named plaintiffs are Midway Venture LLC d/b/a Pacers Showgirls
and Pacers Showgirls International, Peter Balov, F-12 Entertainment Group
Inc. d/b/a Cheetahs, and Rich Buonantony. Balov and Buonantony are the
“responsible managing officers” of Pacers and Cheetahs, respectively, under
the local ordinance regulating adult entertainment establishments. (See San
Diego Mun. Code, § 33.3601 et seq.)
3
Because the procedure used by the trial court was improper, the trial
court’s actions render us unable to address the substance of this new
challenge to restaurant restrictions. On remand, in the trial court, the adult
entertainment businesses may seek to amend their claims to address
restaurant restrictions. We express no opinion on the subject.
We have received several amicus briefs, as noted above, and we have
considered each party’s submission. We do not separately address these
submissions, however, because they either duplicate arguments made by the
parties to this appeal, or they seek to expand the issues before this court and
are therefore irrelevant. We acknowledge the concerns raised by these
parties, but this appeal is not the proper mechanism to address these
concerns given the limited issues before us.
The claims properly before the trial court, and this court, are based on
the First Amendment. It is well-settled that the adult entertainment
businesses have a First Amendment right to provide live entertainment. But
business restrictions imposed for other purposes, unrelated to the
suppression of expression, are not invalid simply because they incidentally
burden expressive conduct. The operations of the adult entertainment
businesses are currently limited because of restaurant restrictions. Those
restaurant restrictions are unrelated to the suppression of speech and
therefore do not run afoul of the First Amendment. Absent a First
Amendment concern or other reason for heightened scrutiny, the restrictions
are valid if they are rationally related to a legitimate governmental interest.
Because the adult entertainment businesses’ claims were framed under the
First Amendment, they never argued in the trial court that the restaurant
restrictions did not meet this low standard. We therefore have no occasion to
4
address such an argument regarding restaurant restrictions for the first time
on appeal.
To the extent the adult entertainment businesses continue to challenge
limitations on live entertainment (as opposed to restaurant restrictions), we
conclude the limitations are valid, content-neutral restrictions on expressive
conduct. Under well-established law, they do not run afoul of the First
Amendment.
Finally, even setting aside the defects noted above, the trial court erred
by issuing the injunction because it is unreasonably vague. The injunction
generally prohibits the State and County from enforcing public health orders
against the adult entertainment businesses and other restaurants, but it
allows the enforcement of “protocols that are no greater than is essential to
further Defendants’ response to control the spread of COVID.” The
injunction does not explain which protocols are “essential,” and the record
provides no guidance on this important question. Where, as here, an
injunction does not provide adequate notice of its scope, it cannot be enforced.
In sum, the trial court erred by entering an overbroad injunction that
was unsupported by the law and which violated the due process rights of the
State and County. We therefore reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The horrors of the COVID-19 pandemic do not need to be described in
detail here. In the United States, hundreds of thousands are confirmed dead,
including tens of thousands of Californians. Hundreds more Californians die
each day. Our hospitals and intensive care units are overwhelmed,
threatening even routine medical care. It is the worst American public
health crisis in a century.
5
Restrictions imposed to combat the spread of COVID-19 have caused
great personal and economic suffering as well. Individuals cannot travel or
meet with friends and loved ones. Businesses have closed or drastically
curtailed their operations. Employees have lost their jobs and their
livelihoods. State and local governments face declining revenue even as
demands for their services increase.
Balancing these risks and harms in the midst of a deadly pandemic is
exceedingly difficult. It is a responsibility primarily entrusted to our elected
officials, who are ultimately accountable to the public. It is our role to
determine the legal and constitutional limits on their authority—but in so
doing, we are constrained by the issues properly before this court.
The disease known as COVID-19 is caused by a previously-unknown
virus, SARS-CoV-2. Evidence submitted to the trial court, in the form of a
declaration from a state epidemiology and infectious disease expert, shows
that the virus’s most common mode of transmission is person-to-person,
“through respiratory particles such as those that are produced when an
infected person coughs or sneezes or projects his or her voice through
speaking, singing, and other vocalization. These particles can land in the
mouths, noses, or eyes of people who are nearby or possibly can be inhaled
into their lungs.” Additionally, “[s]ome evidence exists that [the virus] might
also be spread through aerosol transmission, that is, through smaller
particles (of less than 5 microns) emitting from an infected person . . . that
can travel farther than respiratory droplets.”
The virus can be transmitted even by individuals who do not show
symptoms. “The fact that [the virus] can be spread by individuals who are
pre-symptomatic or asymptomatic is one of the aspects of the COVID-19 that
makes it difficult to control. Individuals without symptoms are generally
6
unaware they are infected and are thus less likely to be taking steps to avoid
transmission of the virus. Therefore, individuals who themselves may have
been unknowingly infected by others can themselves become unknowing
transmitters of the virus.”
When a person is exposed to the virus, the likelihood they will become
infected depends in part on the amount of virus they encounter. “Therefore,
it is important to take steps to limit interactions where conditions support
exposure to higher viral doses.”
Because the primary mode of transmission is person-to-person, any
activity that brings individuals together increases the risk of additional
infections. The more individuals that gather together, and the longer they
spend together, the greater the risk. Similarly, because the likelihood of
infection increases with viral exposure, any activity that promotes the spread
of respiratory droplets (or increases the viral load and concentration of
infectious particles) likewise increases the risk. Such activities include
singing, talking, and laughing.
By the same token, limiting gatherings, wearing cloth face coverings,
and maintaining physical distance (more than six feet of separation) reduces
the risk of infection. These measures do not eliminate the risk, but they
decrease its likelihood by reducing the chance that an individual will
encounter a viral dose sufficient to cause an infection.
“Restaurants and bars are considered high risk environments for
transmission because they are settings where people from different
households share the same space for prolonged periods of time. Further,
eating and drinking require removal of face coverings which can increase the
spread of infectious particles. Additionally, physical movement within the
establishment, duration of time spent in the establishment, and the degree of
7
social mixing among individuals and groups outside one’s household may all
be significant in these sectors, which substantially elevates the risk of
transmission even where face coverings can be worn.”
Beginning in March 2020, the State and County imposed a series of
public health restrictions intended to combat the spread of the virus. These
restrictions shifted as the pandemic ebbed and flowed and as scientists better
understood transmission of the virus.
As noted, the adult entertainment businesses that brought this lawsuit
offer live nude adult entertainment as well as restaurant service. At the
outset of the pandemic, in accordance with public health restrictions, the
adult entertainment businesses closed. As restrictions loosened, they found
that neither the State nor the County provided guidance for reopening adult
entertainment establishments. One of the businesses, Pacers, submitted a
proposal to the County and the City of San Diego to operate outdoors. This
proposal was not accepted by the San Diego Police Department (SDPD),
which is responsible for licensing adult entertainment businesses. Next,
Pacers submitted a plan for reopening to the City of San Diego. The plan
proposed a 15-foot separation between the stages and any tables, one
performance artist per stage at a time, a mask requirement for performers
and other staff, and cleaning and sanitation protocols, among other
conditions. In an email, Pacers told the City that it was “told by the SDPD
that we would be cleared for outdoor performances so long as you give us the
approval.”
Meanwhile, in August 2020, the State released its “Blueprint for a
Safer Economy,” which was a plan for relaxing restrictions on business and
personal activities. The Blueprint established four tiers of restrictions based
on the severity of the pandemic in a given county. The tiers were color-coded,
8
from yellow to orange to red to purple, representing increasing levels of
pandemic severity and public health restrictions. Restaurants in counties in
the yellow, orange, and red tiers could operate indoors with restrictions.
Restaurants in counties in the purple tier could operate only outdoors. Live
entertainment at restaurants was prohibited. The Blueprint does not appear
to have specifically addressed adult entertainment establishments.
After Pacers did not receive any response to its proposed reopening
plan, it began operations. The other adult entertainment business, Cheetahs,
adopted a similar plan and reopened.
Approximately a month after the adult entertainment businesses
reopened, an incident occurred in Pacers’ parking lot that resulted in the
stabbing of a professional baseball player. The incident prompted a great
deal of negative media attention, including allegedly false stories about
Pacers’ operations.
Three days after the stabbing, the County, through its public health
officer, issued a cease-and-desist letter to Pacers. The letter stated that,
under applicable public health regulations, restaurants were allowed to
operate indoors at 25 percent capacity (as well as outdoors) but “restaurants
must discontinue live entertainment.” These regulations were based on the
County’s then-current “red” tier status. The cease-and-desist letter noted
that a recent inspection of Pacers showed that “your establishment is
conducting live entertainment in violation of” public health orders. The letter
continued, “If you do not comply, we will take actions necessary to enforce the
Orders. Failure to comply may result in criminal misdemeanor citations with
a $1,000 fine for each violation. In addition, if violations continue, I may
issue an Order closing the facility.” Several days later, the County issued a
similar cease-and-desist letter to Cheetahs. In response to the cease-and-
9
desist letters, Pacers (and apparently Cheetahs) ceased all adult
performances.
In late October 2020, the adult entertainment businesses filed this
lawsuit. Their complaint recounted the history of their closure, their
reopening plan, and their eventual reopening. They alleged that the cease-
and-desist letters were based on “false news reports” related to the stabbing
incident. They wrote, “[W]hile Dr. Wooten acknowledged Pacers’ right to
remain open solely as a restaurant, Dr. Wooten warned that if there were any
violations of her order prohibiting live adult entertainment, she would issue
an order closing Pacers entirely.”
The adult entertainment businesses alleged that the County had
“implicitly or tacitly” allowed other restaurants and businesses to have live
entertainment. They also alleged that State and County public health
regulations allowed other businesses and activities to occur “despite the
possibility of far more contact among members of the public than what is
even conceivably possible” under the adult entertainment businesses’
reopening plan. They specifically identified places of worship, movie
theaters, dance studios, yoga studios, hair and nail salons, and tattoo parlors,
among others.
The adult entertainment businesses’ first cause of action was for
declaratory and injunctive relief. They alleged that the State and County
parties had deprived them of their First Amendment rights of free speech and
free expressive association and denied them equal protection of the laws.
They sought “a declaration of their right to allow adult themed performances
to occur at their venues” pursuant to their reopening plans. They also sought
“a declaration preventing Defendants from completely prohibiting all live
adult entertainment and requiring Defendants to provide clear guidance that
10
would allow for live adult entertainment in the City and County of San
Diego,” as well as a declaration “[r]ecognizing that Plaintiffs’ Constitutional
rights to free speech and free expressive conduct are not eliminated due to
the Covid-19 related restrictions and pandemic.”
Their second cause of action was for violation of title 42 United States
Code section 1983. It rested on three grounds. First, the adult
entertainment businesses alleged the State and County restrictions on their
businesses represented a content-based restriction on speech in violation of
the First Amendment. Second, they alleged that the restrictions deprived
them of equal protection of the laws because the County allowed “activity and
conduct that is similar, if not identical, in its impact and effects” on the
spread of COVID-19. They maintained, “The challenged measures lack any
rational basis, are arbitrary, capricious, and vague, and are a palpable
invasion of rights secured by fundamental law in violation of the Equal
Protection Clause.” Third, the adult entertainment businesses alleged that
the State and County parties had “taken away property rights and liberties”
without due process of law.
Under this cause of action, the adult entertainment businesses sought
the issuance of a temporary restraining order, preliminary injunction, and
permanent injunction “restraining and preventing any governmental entity
or law enforcement officer from applying and enforcing the provisions [of] the
cease and desist orders, or any other related orders, that prevent Plaintiffs
from being allowed to provide live adult entertainment under the restrictions
outlined above, and finding that Plaintiffs are exempt from all of the
requirements of the cease and desist orders.”
The third and final cause of action was for a writ of mandate under
Code of Civil Procedure section 1085. The adult entertainment businesses
11
alleged that a writ was proper because the State and County parties had
infringed on their constitutional rights or prevented them from exercising
their constitutional rights. They sought a writ compelling the State and
County parties “to set aside their cease and desist orders, and to allow for live
adult entertainment.”
The adult entertainment businesses filed an ex parte application for a
temporary restraining order. They stated, “This application is made on the
grounds that [the State and County parties] have, together, effectuated for all
practical purposes [a] complete ban on live performances by adult
entertainers in violation of Plaintiffs’ constitutionally protected civil rights,
including the right to freedom of speech, equal protection, and due process.”
They asserted, “At issue here is the right of Plaintiffs to allow for live adult
entertainment at their venues. Such live entertainment is protected by the
First Amendment as expressive conduct.” They emphasized, “Plaintiffs seek
no more than to allow these socially distanced adult performances in their
venues that are currently only allowed to operate as restaurants at 25%
capacity.”
The adult entertainment businesses argued that they had a reasonable
probability of prevailing on their claims under title 42 United States Code
section 1983 and would be entitled to injunctive relief on that basis. They
maintained that irreparable injury was presumed because their First
Amendment rights were threatened. They claimed that they had suffered
substantial financial losses and were not viable businesses without live adult
entertainment.
The adult entertainment businesses supported their application with
declarations from their general managers, who described their attempts to
reopen, their conversations with the County and City, and the effect of the
12
cease-and-desist letters on their business. They also provided the trial court
with various public health orders, correspondence, and the cease-and-desist
letters themselves, among other documents.
The County parties opposed the application for a temporary restraining
order, primarily on the ground that the adult entertainment businesses had
not established irreparable harm. They noted that the businesses could still
operate as restaurants, which had been the status quo for many months
before they reopened as adult entertainment establishments.
The State parties opposed as well. They argued that the adult
entertainment businesses had unreasonably delayed seeking relief and
therefore could not show irreparable harm. On the merits, they argued that
the public health orders were not unconstitutional. They asserted that “live
entertainment at venues such as Plaintiffs’ venues poses additional risks
because it encourages patrons to linger for extended periods in an
environment where people are consuming alcohol and are inclined to let their
guards down” regarding COVID-19 precautions. They argued, “The longer
duration increases both the time of exposure as well as the likelihood that
food and alcohol will be consumed in larger quantities, activities that require
the removal of masks [and] thus increases the risk to both customers and to
the workforce.” The State parties supported their opposition with a
declaration, originally filed in other litigation, written by the state
epidemiology and infectious disease expert mentioned above.
At the hearing on their application for a temporary restraining order,
counsel for the adult entertainment businesses continued to focus on the
issue of live adult entertainment. Counsel argued that “[t]he issue that is
before the [c]ourt is a total ban on live entertainment,” and contended that
13
“this ban implicate[d] free speech rights protected by the First
Amendment[.]”
The trial court found that the balance of harms favored the adult
entertainment businesses and there was some possibility the businesses
would prevail on the merits of their claim. The court issued a temporary
restraining order enjoining the State and County parties “from enforcing the
provisions [of] the cease and desist orders, or any other related orders, that
prevent Plaintiffs from being allowed to provide live adult entertainment,
subject to the least restrictive means to further Defendants’ response to
control the spread of COVID.” It also issued an order to show cause why a
preliminary injunction should not issue and set a briefing schedule.
In a supplemental brief, the adult entertainment businesses urged the
court to adhere to its prior analysis and issue a preliminary injunction. They
argued that the State and County parties had not justified their “outright
ban of Plaintiff[s’] fundamental First Amendment rights.” They maintained
that the prohibition on live entertainment was content-based on its face
because it did not apply to other forms of protected expression such as
worship services, political rallies, or movie theaters. But even if it were not
content-based, the adult entertainment businesses argued that it did not
meet even the intermediate scrutiny applied to content-neutral restrictions
on First Amendment rights.
The adult entertainment businesses supported their brief with a
declaration from an epidemiologist and public health expert. The expert
wrote, “I have been asked to opine on the issue of whether a restaurant would
increase the risk to its patrons or employees if a dancer performing on a stage
were present if the dancer is 15 feet away from all patrons and suitably
masked. There is no scientific evidence of increased risk to the patrons if
14
dancing is allowed at a restaurant under those conditions.” The general
managers of the adult entertainment businesses also submitted declarations
describing their reopening following the temporary restraining order. The
general manager of Cheetahs noted that his establishment does not serve
alcohol. Both general managers asserted that they were aware of no
COVID-19 cases that had been traced back to their establishments.
At this point, in late November 2020, the State provided updated
guidance governing restaurants. In the yellow, orange, and red tiers, where
restaurant operations were allowed indoors, the updated guidance also
allowed live performances indoors at restaurants. In the purple tier, where
restaurant operations were allowed outdoors only, the updated guidance
allowed live performances outdoors at restaurants. In essence, the updated
guidance allowed live performances at restaurants to the same extent that
the restaurants themselves were allowed to operate.
A week later, however, the State announced a new framework in
response to dramatically rising COVID-19 cases, hospitalizations, and test
positivity rates. The new framework, the Regional Stay at Home Order,
strictly limited business activity and personal interaction in a region if the
intensive care unit (ICU) capacity in the region fell below 15 percent. The
Regional Stay at Home Order is discussed in more detail below. As relevant
here, if ICU capacity fell below 15 percent, restaurants in the affected region
would be limited to take-out and delivery service only.
Meanwhile, in a supplemental brief, the State parties contended that
the updated guidance rendered the adult entertainment businesses’ claims
moot because “Plaintiffs have the relief they sought through their
Complaint.” In their view, “The activities that Plaintiffs seek to carry out,
according to the Complaint and their preliminary injunction application, are
15
now permitted” under the updated guidance. The State parties maintained
that the adult entertainment businesses could not simply shift their
arguments to new regulations; they would have to amend their complaint to
challenge the updated guidance or future public health orders.
Assuming the adult entertainment businesses’ claims were not moot,
the State parties contended the businesses could not establish a likelihood of
prevailing on the merits. The State argued that restrictions on live
entertainment were constitutional as content-neutral measures to combat the
COVID-19 pandemic. The State claimed that the adult entertainment
businesses’ equal protection claims were derivative of their First Amendment
claims and failed for the same reason. And any procedural due process claim
could not succeed because the regulations were generally applicable to
businesses throughout the State and County.
The State parties supported their brief with copies of the November
2020 updated guidance and other regulations. They also submitted an
additional declaration from the state epidemiology and infectious disease
expert. This declaration, also from another litigation, described more
specifically the COVID-19 risks at restaurants and bars.
In their supplemental brief, the County parties focused on rebutting
the adult entertainment businesses’ allegations of selective enforcement.
They submitted a declaration from the chief of the County’s COVID-19
compliance team. The compliance chief noted that the County had moved
into the “purple” tier, based on deteriorating public health conditions, which
allowed only outdoor restaurant operations. He explained that the County’s
enforcement of public health regulations is “complaint-driven” and it does not
have the resources to continually inspect all business establishments and
other activities. He explained that the County investigates complaints and, if
16
a violation is found, the County sends a cease-and-desist letter. For example,
the County’s cease-and-desist letter to Pacers was prompted by an earlier
SDPD undercover inspection that revealed violations of local ordinances as
well as public health regulations. The SDPD sent a letter to Pacers
documenting the violations, with a copy to the County. The County then sent
its own cease-and-desist letter.
The compliance chief explained that the goal of the County’s cease-and-
desist letters is to obtain voluntary compliance with public health
regulations. But, if unsuccessful, the County can initiate enforcement
actions, including an immediate closure order. Through November 2020, the
County had issued 125 cease-and-desist letters for violations of the
COVID-19 public health regulations. The County had also issued seven
immediate closure orders. These letters and orders covered a wide variety of
businesses and other activities. In addition, the compliance chief stated,
“Plaintiffs’ businesses were not the only establishments that received a cease-
and-desist letter from the County concerning live entertainment,” identifying
four others. He maintained that the County never permitted or approved live
entertainment or performances at the adult entertainment businesses. The
County’s public health regulations incorporate State guidance, and the
County has no authority to deviate from the State’s direction. The State
guidance applicable to the adult entertainment establishments is the
guidance governing restaurants.
In their supplemental reply brief, the adult entertainment businesses
disputed that their claims were moot. They argued the controversy had
broad public interest, the State and County could reimpose restrictions on
live entertainment, and material questions remained for the court’s
determination, including the application of the updated guidance to live adult
17
entertainment. They asserted, “Plaintiffs are entitled to a definitive order
from the Court that makes allowances for the continuance of live adult
entertainment.” On the merits, the adult entertainment businesses
reiterated their view that restrictions on live adult entertainment were
unconstitutional under the First Amendment, whether viewed as content-
based or content-neutral.
After hearing argument, the trial court issued a detailed order granting
a preliminary injunction. The court began by disposing of several evidentiary
matters. 2 It then recounted the history of the dispute, including the adult
entertainment businesses’ efforts to reopen. The court identified the
businesses’ safety protocols and noted the opinion of their expert that a live
dancer on a physically distanced stage would not increase the risk of
COVID-19 transmission at a restaurant. The court asserted, “Defendants
have not submitted any evidence to refute [these declarations]. The Court
infers that . . . the County possesses contact tracing data and has the power
to produce such evidence to refute Plaintiffs’ assertions that Plaintiffs
providing live adult entertainment and San Diego County businesses with
restaurant service, such as plaintiffs’ establishments, subject to protocols, do
not present any risk—much less a greater risk than before Governor
Newsom issued his December 3, 2020 Regional Stay at Home Order—to the
spread of COVID in San Diego County. Since the County could have
produced ‘stronger evidence,’ the Court discounts the County’s ‘weaker
evidence.’ [Citation.] [¶] Accordingly, the Court finds that Plaintiffs have
2 With one exception, these evidentiary rulings have not been challenged
by the parties on appeal. We therefore have no occasion to consider them.
The one exception, regarding a request for judicial notice, will be discussed
below.
18
been devoid of COVID, have done nothing to contribute to the spread of
COVID, and have honored their representations to . . . the County.”
The trial court went on, “Given every opportunity, the County has
provided the Court with no evidence that San Diego County businesses with
restaurant service, such as Plaintiffs’ establishments, who’ve implemented
protocols as directed by the County, present any risk—much less a greater
risk than before Governor Newsom issued his December 3, 2020 Regional
Stay at Home Order—to the spread of COVID.” The court wrote, “The
obvious question, from the Court’s perspective, is, in the absence of evidence,
why is the State’s Regional Stay at Home Order limiting San Diego County
restaurant businesses ‘to take-out, pick-up, or delivery’ rational?” The court
found that the state’s epidemiology and infectious disease expert “provides a
general overview of COVID-19 in California but says nothing to support
restrictions, in addition to existing protocols, in San Diego County.”
In evaluating the adult entertainment businesses’ claims, the trial
court found that intermediate scrutiny applied because the restrictions were
unrelated to suppressing the businesses’ expression. But it found that
“shuttering Plaintiffs’ establishments except ‘to take-out, pick-up, or
delivery,’ in the absence of evidence to support the restrictions, is neither
‘neutral’ nor ‘narrow.’ Defendants’ characterization of Plaintiffs’
establishments as restaurants or as non-essential does not dilute Plaintiffs’
right to first amendment protection.” The court noted, however, that it could
not find “that the County has arbitrarily enforced the prohibition of live
entertainment indoors at bars and restaurants . . . .”
Reviewing the recently-enacted Regional Stay at Home Order, the court
wrote that it “questions whether there is a rational nexus between the
percentage of ICU bed capacity throughout the Southern California Region
19
and Plaintiffs providing live adult entertainment and businesses with
restaurant service, such as Plaintiffs’ establishments, in San Diego County.
Defendants have presented no evidence that businesses with restaurant
service, such as Plaintiffs’ establishments, who’ve implemented protocols as
directed by the County, have impacted ICU bed capacity throughout the
Southern California Region (much less in San Diego County).”
The court found that the adult entertainment businesses had shown
“they have exhausted their capital trying to comply with Defendants’ ‘endless
and bewildering’ orders, have sustained significant, if not draconian, losses,
and are fearful that their businesses may be closed permanently if
Defendants’ latest orders are not enjoined.” Balanced against this harm, the
court reiterated its finding that the State and County parties had not shown
that restaurants or live entertainment present any risk of spreading COVID,
if they follow safety protocols.
In light of these findings, the court determined that “the harm to
Plaintiffs if the preliminary injunction is denied is greater than the harm to
Defendants if the preliminary [injunction] is granted” and “it is likely that
the Plaintiffs will prevail on the merits of one or more of their claims.” It
issued an injunction prohibiting the State and County “from enforcing the
provisions of the cease and desist order, or any related orders including the
State’s Regional Stay [at] Home Order, that prevent 1) Plaintiffs from
providing live adult entertainment; and 2) San Diego County businesses with
restaurant service, such as Plaintiffs’ establishments, from continuing to
operate their respective businesses, subject to protocols that are no greater
than is essential to further Defendants’ response to control the spread of
COVID.” The court made its order effective immediately.
20
The next day, the County parties filed an ex parte application
requesting clarification of the scope of the preliminary injunction,
“specifically whether the injunction applies only to Plaintiffs’ restaurant
establishments with live adult entertainment, or to all restaurants within the
County of San Diego, or to some subset of restaurants within the County.” At
a hearing, the court explained that “the Court’s intention is that all
businesses which provide restaurant service, meaning all restaurants in the
[C]ounty of San Diego, are encompassed within the scope of the Court’s order.
It’s not limited to plaintiffs who also provide restaurant service, but it is
intended to encompass all restaurants within the [C]ounty of San Diego.”
The State and County parties appeal. The State parties filed an
emergency application for a temporary stay pending appeal, which we
granted. The stay remains in force.
DISCUSSION
I
Preliminary Injunction Standards
“In deciding whether to issue a preliminary injunction, a court must
weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will
ultimately prevail on the merits and (2) the relative interim harm to the
parties from issuance or nonissuance of the injunction.” (Butt v. State of
California (1992) 4 Cal.4th 668, 677-678.) “The trial court’s determination
must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the
greater the plaintiff’s showing on one, the less must be shown on the other to
support an injunction.” (Id. at p. 678.)
“ ‘Ordinarily, appellate review is limited to whether the trial court
abused its discretion in evaluating the foregoing factors. [Citation.]
“Occasionally, however, the likelihood of prevailing on the merits depends
21
upon a question of pure law rather than upon [the] evidence to be introduced
at a subsequent full trial. This issue can arise, for example, when it is
contended that an ordinance or statute is unconstitutional on its face and
that no factual controversy remains to be tried. If such a question of pure law
is presented, it can sometimes be determinative over the other factor, for
example, when the defendant shows that the plaintiff’s interpretation is
wrong as a matter of law and thus the plaintiff has no possibility of success
on the merits. [Citations.]” [Citations.] Of course, such questions of law are
subject to de novo review.’ ” (Jamison v. Dept. of Transportation (2016)
4 Cal.App.5th 356, 362.)
In other words, “[n]otwithstanding the applicability of the abuse of
discretion standard of review, the specific determinations underlying the
superior court’s decision are subject to appellate scrutiny under the standard
of review appropriate to that type of determination. [Citation.] For instance,
the superior court’s express and implied findings of fact are accepted by
appellate courts if supported by substantial evidence, and the superior court’s
conclusions on issues of pure law are subject to independent review.” (Smith
v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 739.) “[W]hen
the matter is solely a question of a violation of law the standard of review is
not abuse of discretion but whether statutory or constitutional law was
correctly interpreted and applied by the trial court.” (Cal. Ass’n of Dispensing
Opticians v. Pearle Vision Ctr. (1983) 143 Cal.App.3d 419, 426.)
“Where, as here, the defendants are public agencies and the plaintiff
seeks to restrain them in the performance of their duties, public policy
considerations also come into play. There is a general rule against enjoining
public officers or agencies from performing their duties. [Citations.] This
rule would not preclude a court from enjoining unconstitutional or void acts,
22
but to support a request for such relief the plaintiff must make a significant
showing of irreparable injury.” (Tahoe Keys Property Owners’ Assn. v. State
Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471; see O’Connell
v. Superior Court (2006) 141 Cal.App.4th 1452, 1464.)
“Finally, our decision does not constitute a final adjudication of the
ultimate rights in controversy. [Citations.] In reviewing the propriety of a
ruling on an application for a preliminary injunction, we merely decide
whether the trial court abused its discretion based on the record before it at
the time of the ruling.” (Shoemaker v. County of Los Angeles (1995)
37 Cal.App.4th 618, 625-626.)
II
The Scope of the Injunction and Due Process
The State and County parties first argue that the preliminary
injunction was an abuse of discretion and violated due process because it
granted relief never sought by the adult entertainment businesses, based on
legal theories never addressed by the parties. We agree.
“It is a fundamental concept of due process that a judgment against a
defendant cannot be entered unless he was given proper notice and an
opportunity to defend.” (In re Marriage of Lippel (1990) 51 Cal.3d 1160,
1166.) “ ‘In a contested proceeding, no court may render judgment without
conforming to the constitutional guarantees which afford due process of law.
[Citation.] Due process requires that all parties be notified of the facts and
issues in dispute, that each party be afforded a fair opportunity to present
evidence in open court, and that judgment be rendered based on an
evaluation of the evidence on each side, findings of fact and conclusions of
law.’ ” (Carr v. Kamins (2007) 151 Cal.App.4th 929, 936; accord, Spector v.
Superior Court of San Mateo County (1961) 55 Cal.2d 839, 843.)
23
The due process guarantees of notice and an opportunity to be heard
have little value unless a party “ ‘is advised of the nature of the hearing
giving rise to that opportunity, including what will be decided therein.’ ”
(In re Wilford J. (2005) 131 Cal.App.4th 742, 746.) If a court’s conception of
the nature of the hearing materially changes, it must give an affected party
the opportunity to be heard before rendering its decision. (Moore v.
California Minerals Products Corp. (1953) 115 Cal.App.2d 834, 837.)
Denying that opportunity deprives the affected party “of a substantial right
to which it was entitled by virtue of the guarantee of due process.” (Ibid.) A
court that rules on a material issue “without even mentioning to the parties
at the time that it was considering the question” violates due process.
(Bricker v. Superior Court (2005) 133 Cal.App.4th 634, 639.)
These principles are embodied, in part, in the Rules of Court governing
preliminary injunctions. “A party requesting a preliminary injunction may
give notice of the request to the opposing or responding party either by
serving a noticed motion under Code of Civil Procedure section 1005 or by
obtaining and serving an order to show cause (OSC). An OSC must be used
when a temporary restraining order (TRO) is sought, or if the party against
whom the preliminary injunction is sought has not appeared in the action.”
(Cal. Rules of Court, rule 3.1150(a).) “The OSC and TRO must be stated
separately, with the OSC stated first. The restraining language sought in an
OSC and a TRO must be separately stated in the OSC and the TRO and may
not be incorporated by reference. The OSC must describe the injunction to be
sought at the hearing. The TRO must describe the activities to be enjoined
pending the hearing.” (Id., rule 3.1150(c).)
As an initial matter, we note the order to show cause issued by the trial
court contained an apparently unintentional error. After reciting the terms
24
of the temporary restraining order, it stated, “Further, Defendants shall show
cause, if any exists, why a preliminary injunction should not issue pending
trial, enjoining all Defendants from continuing to operate their respective
businesses.” Defendants, the State and County parties, do not operate
businesses. However, the State and County parties did not object at the time,
and their argument on appeal does not rest on this inadvertent deficiency.
We therefore do not consider it further.
Viewing the proceedings more broadly, the notice that the State and
County parties did receive cannot reasonably be construed to cover the
expansive relief granted in the preliminary injunction, or the purported
grounds therefor. The adult entertainment businesses’ complaint and their
application for a temporary restraining order focused entirely on the State
and County restrictions on live entertainment. They did not challenge
restaurant restrictions. In their application, they stated, “This application is
made on the grounds that [the State and County parties] have, together,
effectuated for all practical purposes [a] complete ban on live performances by
adult entertainers in violation of Plaintiffs’ constitutionally protected civil
rights, including the right to freedom of speech, equal protection, and due
process.” They repeatedly stated that the issue was live entertainment: “At
issue here is the right of Plaintiffs to allow for live adult entertainment at
their venues. Such live entertainment is protected by the First Amendment
as expressive conduct.” They explicitly described their requested relief as
follows: “Plaintiffs seek no more than to allow these socially distanced adult
performances in their venues that are currently only allowed to operate as
restaurants at 25% capacity.” They repeated the same arguments at the
hearing on their application for a temporary restraining order: “The issue
that is before the [c]ourt is a total ban on live adult entertainment.”
25
The temporary restraining order issued by the court was likewise
limited to live entertainment. It enjoined the State and County parties “from
enforcing the provisions [of] the cease and desist orders, or any other related
orders, that prevent Plaintiffs from being allowed to provide live adult
entertainment, subject to the least restrictive means to further Defendants’
response to control the spread of COVID.” (Italics added.)
In their supplemental brief in support of a preliminary injunction, the
adult entertainment businesses did not deviate from their singular focus on
live entertainment. They characterized the challenged restrictions as an
“outright ban of Plaintiffs’ fundamental First Amendment rights” and argued
they were invalid as either content-based or content-neutral regulations.
Their expert likewise opined on whether live entertainment increased the
risk of COVID-19 transmission at restaurants. He did not address the risk of
transmission in restaurants more broadly. He stated, “I have been asked to
opine on the issue of whether a restaurant would increase the risk to its
patrons or employees if a dancer performing on a stage were present if the
dancer is 15 feet away from all patrons and suitably masked.” (Italics
added.)
On reply, the adult entertainment businesses continued to frame the
issue around live entertainment. They explained, “The challenge here relates
to Defendants’ emergency orders that prohibit live adult entertainment” and
“Plaintiffs brought this case to protect their freedom of expression.” They
asserted, “Plaintiffs are entitled to a definitive order from the Court that
makes allowances for the continuance of live adult entertainment.” They
mentioned the newly enacted Regional Stay at Home Order, but only in
relation to live performances, e.g., “Under the newly minted ‘Deep Purple’
tier Plaintiffs are back to a total ban on all live adult entertainment . . . .”
26
A reasonable person would not understand that restaurant restrictions
would be at issue in these proceedings. Throughout their briefing, the adult
entertainment businesses never challenged restaurant restrictions and never
articulated any basis for such a challenge. Indeed, the explicit premise of
their argument was that restaurants were allowed to operate, and live
entertainment did not increase the risk of COVID-19 transmission at
restaurants. They said so explicitly: “Plaintiffs seek no more than to allow
these socially distanced adult performances in their venues that are currently
only allowed to operate as restaurants at 25% capacity.”
Because the State and County parties had no notice that restaurant
restrictions were at issue, the court violated due process by considering them
for the first time in its order and, without any opportunity for comment,
enjoining their enforcement, effective immediately. “Due process of law does
not mean according to the whim, caprice, or will of a judge, [citation]; it
means according to law.” (Estate of Buchman (1954) 123 Cal.App.2d 546,
560.) “Judicial absolutism is not a part of the American way of life. The
odious doctrine that the end justifies the means does not prevail in our
system for the administration of justice. The power vested in a judge is to
hear and determine, not to determine without hearing. When the
Constitution requires a hearing, it requires a fair one, one before a tribunal
which meets established standards of procedure.” (Ibid.)
To justify the injunction, the adult entertainment businesses argue
first that the State and County parties “invited the trial court to address the
constitutionality of the restrictions on restaurants” because they
characterized the businesses as “restaurants” for purposes of public health
restrictions. This argument is unpersuasive. The characterization of the
adult entertainment businesses as restaurants was relevant to the issue
27
presented—whether live entertainment was allowed—in a narrow sense,
because it was the reason for the restrictions on live entertainment. This
characterization did not put at issue either the broader restrictions on
restaurants generally, or the nuances of whether outdoor dining versus
indoor dining is permissible specifically, because these restrictions on
restaurants (separate from live entertainment) were never challenged. As
discussed above, the premise of the adult entertainment businesses’
argument (and the State and County parties’ opposition) was that
restaurants were allowed to operate. It was the restriction on live
entertainment that was disputed.
As part of this argument, the adult entertainment businesses point to
the State and County parties’ request, during the preliminary injunction
hearing, that the court take judicial notice of an order denying a temporary
restraining order in litigation pending before a different judge in the trial
court. (See 640 Tenth, LP v. Newsom (Super. Ct. San Diego County, No. 37-
2020-00041316-CU-MC-CTL) (640 Tenth).) The trial court granted the
request for judicial notice, and we take judicial notice of the order as well.
(Evid. Code, §§ 452, subd. (d), 459.) Our judicial notice is expressly limited to
the existence and content of the order, but not the truth of any factual
assertions or findings. (See Steed v. Dept. of Consumer Affairs (2012)
204 Cal.App.4th 112, 122.) The parties dispute whether the trial court
exceeded the limits of judicial notice in its reliance on the order, but we need
not consider the issue to resolve this appeal.
The 640 Tenth litigation was brought by several San Diego restaurants
and gyms. They alleged that public health restrictions imposed by the
Governor and state agencies exceeded their statutory authority or invaded
the role of the Legislature. The 640 Tenth court found that the restaurants
28
and gyms had not shown a probability of prevailing and the balance of the
harms did not favor them.
At the preliminary injunction hearing in this matter, the State argued
that the 640 Tenth order was relevant to show that other businesses in San
Diego County were following public health restrictions, but the temporary
restraining order gave the adult entertainment businesses special
dispensation to operate (improperly, in the State’s view). The State went on
to argue that it was relevant “to the factual context here” but that the trial
court was not bound by an order in another case.
While the trial court took judicial notice of the 640 Tenth order, neither
this fact nor the State’s comments indicated that restaurant restrictions were
suddenly at issue in the proceedings below. Nor, in our view, could it have
expanded the adult entertainment businesses’ claims in this manner under
the circumstances here. The adult entertainment businesses’ requested
relief, and its legal basis, remained the same. The 640 Tenth order was
addressed in passing and did not play any significant role at the hearing. 3
The adult entertainment businesses also point to the well-settled rule
that a trial court has “broad discretion to allow amendments to pleadings to
3 The 640 Tenth plaintiffs are among the parties who have filed an
amicus curiae brief in this appeal. Their brief seeks, in large part, to litigate
the issue of restaurant restrictions that was not litigated in the trial court
below. It is supported by a voluminous request for “judicial notice” of various
facts and evidence surrounding the issue. The scope of this request for
judicial notice—covering documents not presented to the trial court—only
confirms that the issue was not litigated below and the trial court’s injunction
covering restaurant restrictions was improper. We decline the 640 Tenth
plaintiffs’ invitation to litigate the issue of restaurant restrictions for the first
time in this appeal. By separate order, we have denied their request for
judicial notice. We express no opinion on the merits of the substantive
arguments they seek to present.
29
harmonize any variance between a party’s allegations and the proof
submitted in support.” Here, however, the adult entertainment businesses
did not seek to amend their complaint or alter the relief requested. Nor did
the “proof” in the proceedings below encompass a challenge to restaurant
restrictions. This rule therefore is inapplicable and does not provide any
basis for upholding the trial court’s preliminary injunction.
The adult entertainment businesses also point out that courts have the
authority to issue injunctions, in the public interest, that sweep more broadly
than the specific parties before it. (See, e.g., City of Chicago v. Barr
(7th Cir. 2020) 961 F.3d 882, 918.) We need not consider whether the trial
court could extend its injunction to other businesses offering restaurant
service, if restaurant restrictions had been properly at issue. The error here
is more fundamental. The trial court did not have the ability, consistent with
principles of due process, to enjoin restaurant restrictions at all, even in favor
of the two adult entertainment businesses in this case.
The adult entertainment businesses rely on People v. Uber
Technologies, Inc. (2020) 56 Cal.App.5th 266 and City of Redlands v. County
of San Bernardino (2002) 96 Cal.App.4th 398, but they are inapplicable.
Uber Technologies affirmed an allegedly overbroad injunction, noting that it
was consistent with the alleged violations. (Uber Technologies, at p. 317.)
The injunction here was not consistent with the violation alleged (or the relief
sought) by the adult entertainment businesses. City of Redlands considered
a writ of mandate issued following trial. (City of Redlands, at p. 405.) The
defendant contended that the language of the writ, which covered the
offending general plan amendment “ ‘or any similar amendment(s),’ ” was
overbroad because it extended beyond the scope of the litigation. (Id. at
p. 415.) City of Redlands agreed “that an injunctive order should be limited
30
in scope to the subject of the litigation” but disagreed that the writ was
overbroad. (Ibid.) It explained that the trial court “reasonably included this
additional requirement to prevent the County from attempting technical
compliance with the court’s order (i.e., by simply enacting new amendments
with similar language), without remedying the deficiencies raised in this
action . . . .” (Ibid.) The injunction here did not simply extend to other
conduct similar to the live entertainment restrictions. It invalidated separate
and distinct restrictions on restaurants, unrelated to live entertainment, that
were never the subject of the proceedings below.
It is apparent that even the adult entertainment businesses do not
seriously contend that the propriety of restaurant restrictions was actually
litigated below. Our review of the record, detailed above, confirms this
conclusion. The trial court therefore violated due process by enjoining the
State and County parties from enforcing restaurant restrictions, and that
portion of the preliminary injunction must be reversed. 4
4 The adult entertainment businesses note that the County parties, in
their appellate briefing, state that they do not object to “that portion of the
trial court’s order that enjoins restrictions against outdoor dining.” (Italics
added.) The businesses claim this position “effectively concedes the trial
court’s authority to include restaurants in the injunction.” Whether the
County’s position constitutes a concession or not, it is not dispositive. The
State parties object to the injunction in its entirety, and as discussed it is
improper. In this context, the County parties request that we take judicial
notice of two filings by the State parties in a federal appeal. These filings
appear to be relevant, if at all, for the truth of the matters stated therein.
The truth of these matters is not judicially noticeable, so we deny the County
parties’ request for judicial notice of the filings. (See Lockley v. Law Office of
Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) The
County parties also request that we take judicial notice of the County’s most
recent public health order. The adult entertainment businesses do not
oppose this request. We therefore grant judicial notice of this public health
order. (Evid. Code, §§ 452, subd. (c), 459.)
31
III
Restrictions on Live Performances
A
The State and County parties contend the court abused its discretion
by enjoining their enforcement of restrictions on live entertainment,
specifically, because the adult entertainment businesses have not shown a
likelihood of prevailing on their claims. Because the injunction prohibits the
enforcement of any orders, our focus is the current set of public health
restrictions governing the adult entertainment businesses, i.e., the
August 2020 Blueprint for a Safer Economy (with updated November 2020
restaurant guidance) and the December 2020 Regional Stay at Home Order.
We conclude the trial court erred by finding that the businesses had shown a
likelihood of succeeding on their claim that these restrictions are
unconstitutional. 5
The adult entertainment businesses’ primary claim is based on the
First Amendment. “Nude or semi-nude entertainment is expressive activity
that falls within the ambit of the First Amendment. [Citations.] However,
‘nude dancing . . . falls only within the outer ambit of the First Amendment’s
protection.’ ” (Krontz v. City of San Diego (2006) 136 Cal.App.4th 1126, 1132
5 We note that the adult entertainment businesses’ challenge to the prior
regulatory scheme, before the updated restaurant guidance, is not necessarily
moot. (See Roman Catholic Diocese v. Cuomo (2020) __ U.S. __ [141 S.Ct. 63,
68] [2020 WL 6948354, at *6] (Roman Catholic Diocese).) The injunction
here, however, was not limited to the prior scheme, and the adult
entertainment businesses have given no indication they seek such a limited
injunction, which would have no effect on enforcement of the current
Blueprint for a Safer Economy or the Regional Stay at Home Order. We
therefore need not consider whether the restriction on live entertainment,
before the updated restaurant guidance, was valid under the First
Amendment or otherwise.
32
(Krontz); accord, City of Erie v. Pap’s A.M. (2000) 529 U.S. 277, 289 (City of
Erie).) “The specific First Amendment tests that may apply, and the
determination as to the proper level of scrutiny, depends for the most part on
the nature of the provision” challenged as unconstitutional. (Dream Palace v.
County of Maricopa (9th Cir. 2004) 384 F.3d 990, 998 (Dream Palace).)
B
The most stringent restriction currently imposed on the adult
entertainment businesses is the Regional Stay at Home Order. The Regional
Stay at Home Order generally prohibits gatherings among members of
different households, with some exceptions. It allows worship and political
expression outdoors, with safety protocols. It allows “critical infrastructure
retailers” to operate indoors at 20 percent capacity, again with safety
protocols. As relevant here, it limits restaurants to take-out and delivery
service. They cannot have indoor or outdoor dining.
We must first consider whether the Regional Stay at Home Order
implicates the First Amendment at all. The adult entertainment businesses
bear this initial burden. (Clark v. Community for Creative Non-Violence
(1984) 468 U.S. 288, 293, fn. 5 (Clark).)
In Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697 (Arcara), the United
States Supreme Court considered an analogous situation. Local law
enforcement witnessed illegal sexual activities taking place at an adult
bookstore. (Id. at p. 698.) The government filed a civil suit seeking closure of
the bookstore under generally applicable laws identifying “places of
prostitution, lewdness, and assignation as public health nuisances[.]” (Id. at
p. 699.) The trial court rejected the bookstore’s defense based on the First
Amendment. (Id. at p. 700.)
33
The Supreme Court agreed the First Amendment did not apply.
(Arcara, supra, 478 U.S. at p. 707.) It explained, “[W]e have not traditionally
subjected every criminal and civil sanction imposed through legal process to
‘least restrictive means’ scrutiny simply because each particular remedy will
have some effect on the First Amendment activities of those subject to
sanction. Rather, we have subjected such restrictions to scrutiny only where
it was conduct with a significant expressive element that drew the legal
remedy in the first place, as in [United States v. O’Brien (1968) 391 U.S. 367(O’Brien)], or where a statute based on a nonexpressive activity has the
inevitable effect of singling out those engaged in expressive activity, as in
[Minneapolis Star & Tribune Co. v. Minnesota Comm. of Revenue (1983)
460 U.S. 575]. This case involves neither situation, and we conclude the First
Amendment is not implicated by the enforcement of a public health
regulation of general application against the physical premises in which
respondents happen to sell books.” (Arcara, at pp. 706-707.)
Here, as in Arcara, a generally-applicable public health regulation has
curtailed expressive activity. Under Arcara, the First Amendment will apply
if “it was conduct with a significant expressive element that drew the legal
remedy in the first place” or if the restriction “has the inevitable effect of
singling out those engaged in expressive activity.” (Arcara, supra, 478 U.S.
at pp. 706-707.) We conclude neither circumstance applies here. The
Regional Stay at Home Order is an all-encompassing set of restrictions on
public and private gatherings, prompted by the threat of COVID-19
transmission at such gatherings. There has been no showing that conduct
with a significant expressive element, let alone live nude adult
entertainment, drew the restrictions in the first place. Similarly, the breadth
of the Regional Stay at Home Order shows that singling out expressive
34
activity is not an inevitable effect of its application. It does not implicate the
First Amendment. (See Mitchell v. Newsom (C.D.Cal. 2020) __ F.Supp.3d __
[2020 WL 7647741, at *4].)
The adult entertainment businesses first argue that the State and
County parties have forfeited reliance on Arcara by not advancing this
argument in the trial court. We disagree. The Regional Stay at Home Order
was not in effect in the County when the State parties filed their
supplemental brief opposing the issuance of a preliminary injunction—nor
was it in effect when the adult entertainment businesses sought their
temporary restraining order and order to show cause for a preliminary
injunction. To the extent the Regional Stay at Home Order was part of the
preliminary injunction and is part of this appeal, the State parties’
counterarguments are likewise a part. In any event, even if the forfeiture
rule applies, we exercise our discretion to consider the State and County
parties’ position.
On the substance, the adult entertainment businesses do not address
Arcara, except to say it is inapplicable—without further explanation.
Instead, they rely on Roberts v. Neace (6th Cir. 2020) 958 F.3d 409 (Roberts).
Roberts considered a constitutional challenge to COVID-19 prohibitions on
in-person worship, based on the First Amendment right to free exercise of
religion. (Id. at p. 413.) In this context, “a generally applicable law that
incidentally burdens religious practices usually will be upheld,” but “a law
that discriminates against religious practices usually will be invalidated[.]”
(Ibid.) Roberts held that the prohibition on in-person worship discriminated
against religion because similar gatherings were allowed under various
exceptions to generally-applicable rules. (Ibid.)
35
The adult entertainment businesses claim that various exceptions to
the Regional Stay at Home Order similarly render it discriminatory. Even
accepting the analogy to Roberts for the sake of argument, we disagree. The
exceptions identified by the adult entertainment businesses, such as retail
stores, shopping malls, outdoor religious services, and outdoor political
protests, are not similar to the adult entertainment businesses because the
adult entertainment businesses incorporate restaurant service. It is
restaurants that are regulated by the Regional Stay at Home Order, not any
expressive activity protected under the First Amendment. The evidence
shows that restaurants and bars are high risk environments for COVID-19
transmission because, among other things, eating and drinking requires the
removal of face coverings. Moreover, restricting all restaurants to take-out
and delivery only does not implicitly discriminate against the adult
entertainment businesses. They are simply covered under a generally-
applicable rule. To frame it under the correct standard, neither the Regional
Stay at Home Order nor its restaurant restrictions singles out live adult
entertainment (or adult entertainment businesses) in its application. (See
Arcara, supra, 478 U.S. at p. 707.)
The adult entertainment businesses rely heavily on the exceptions in
the Regional Stay at Home Order for outdoor religious services and outdoor
political protests. They argue that these exceptions show that the
restrictions on their own businesses are content-based regulations, i.e.,
non-religious and non-political speech is disfavored. This argument is
unpersuasive. First, the adult entertainment businesses seek to engage in
expressive conduct, not simply speech, and the speech-based authorities cited
by the businesses are therefore inapplicable. (See, e.g., Reed v. Town of
Gilbert (2015) 576 U.S. 155, 156.) Second, as noted, the basis for the
36
Regional Stay at Home Order’s restrictions on the adult entertainment
businesses is their restaurant operations, not their live entertainment. We
have no occasion in this appeal to consider which restrictions would apply to
a business offering only live entertainment, not restaurant service, and to
what extent those restrictions would be constitutional.
The adult entertainment businesses rely on Roman Catholic Diocese,
supra, __ U.S. __ [141 S.Ct. 63] and the related opinion on remand in
Agudath Israel of America v. Cuomo (2d Cir. 2020) 983 F.3d 620 [2020 WL
7691715], but they are wholly inapplicable. Those cases, like Roberts,
considered a First Amendment challenge to COVID-19 restrictions based on
the right to free exercise of religion. The restrictions in Roman Catholic
Diocese and Agudath Israel explicitly targeted religious exercise, limiting
religious services to a maximum occupancy of 10 or 25 persons. (Roman
Catholic Diocese, at p. 66; Agudath Israel, at *6.) They “single out houses of
worship for especially harsh treatment.” (Roman Catholic Diocese, at p. 66,
fn. omitted; see Agudath Israel, at *7.) By contrast, the restrictions on the
adult entertainment businesses do not single out expressive activity. They
apply to all restaurants.
Because the Regional Stay at Home Order’s restrictions on the adult
entertainment businesses do not implicate the First Amendment, they are
subject to rational basis review. “In areas of social and economic policy, a
statutory classification that neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.” (F.C.C. v. Beach
Communications, Inc. (1993) 508 U.S. 307, 313.) “Where there are ‘plausible
reasons’ for [the restriction], ‘our inquiry is at an end.’ [Citation.] This
37
standard of review is a paradigm of judicial restraint. ‘The Constitution
presumes that, absent some reason to infer antipathy, even improvident
decisions will eventually be rectified by the democratic process and that
judicial intervention is generally unwarranted no matter how unwisely we
may think a political branch has acted.’ ” (Id. at pp. 313-314.)
The parties address rational basis review in their briefing, but it was
never litigated in the trial court. The adult entertainment businesses did not
contend that rational basis review applied to their claims, and the State and
County parties did not oppose on that basis. We will not consider the issue
for the first time on appeal. Although we note the exceedingly low standard
necessary to satisfy rational basis review, we express no opinion on the
parties’ other specific legal and factual contentions. 6
C
The adult entertainment businesses also remain subject to the color-
tier-based Blueprint for a Safer Economy, which will govern their operations
when regional ICU capacity recovers and the Regional Stay at Home Order is
no longer in effect. Under the Blueprint for a Safer Economy, with its
updated restaurant guidance, the adult entertainment businesses are
allowed to offer live entertainment to the same extent they are allowed to
operate as restaurants. This circumstance is what the adult entertainment
businesses sought by their request for provisional relief: “Plaintiffs seek no
more than to allow these socially distanced adult performances in their
6 We are able to address the discrete legal issue of what standard of
review applies to the challenged restrictions in the Regional Stay at Home
Order, and conclude rational basis review applies for the reasons stated.
However, resolving the question of whether these specific restrictions survive
rational basis review is a separate issue entirely and should be litigated in
the trial court in the first instance.
38
venues that are currently only allowed to operate as restaurants at 25%
capacity.”
The State parties note it is unclear whether the trial court found that
the Blueprint for a Safer Economy, with updated restaurant guidance,
violates the First Amendment. We note it is likewise unclear whether the
adult entertainment businesses make such a contention. To the extent they
do, we reject their argument as unpersuasive.
Again, the specific First Amendment test that applies to the updated
guidance depends on the nature of the restriction. (Dream Palace, supra,
384 F.3d at p. 998.) “To determine what level of scrutiny applies to the
ordinance at issue here, we must decide ‘whether the State’s regulation is
related to the suppression of expression.’ [Citation.] If the governmental
purpose in enacting the regulation is unrelated to the suppression of
expression, then the regulation need only satisfy the ‘less stringent’ standard
from O’Brien for evaluating restrictions on symbolic speech. [Citations.] If
the government interest is related to the content of the expression, however,
then the regulation falls outside the scope of the O’Brien test and must be
justified under a more demanding standard.” (City of Erie, supra, 529 U.S. at
p. 289.)
The government purpose here is unrelated to the suppression of
expression. It is undisputed that the Blueprint for a Safer Economy was
created to prevent the spread of COVID-19. The restrictions on indoor and
outdoor restaurant operations, and associated capacity limits, are designed to
promote physical and social distancing and reduce the risk of virus
transmission at restaurants. Any suppression of expression is incidental to
its purpose. The less stringent O’Brien test therefore applies. (City of Erie,
supra, 529 U.S. at p. 296.)
39
Under O’Brien, “a government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the governmental interest
is unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.” (O’Brien, supra, 391 U.S. at
p. 377; accord, Krontz, supra, 136 Cal.App.4th at p. 1137.)
The adult entertainment businesses conceded in the trial court that the
first two factors of the O’Brien test are satisfied. In this court, they agree the
State and County parties “have a compelling interest in protecting the public
from COVID-19.” As to the third factor, we have already noted that this
interest is unrelated to the suppression of expression.
The fourth O’Brien factor requires that “the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.” (O’Brien, supra, 391 U.S. at p. 377.) This factor
does not require a showing that “there are less speech-restrictive alternatives
that could have satisfied” the government’s interest in regulation. (Clark,
supra, 468 U.S. at p. 299.) Nor must the regulation “be the least restrictive
or least intrusive means of doing so.” (Ward v. Rock Against Racism (1989)
491 U.S. 781, 798 (Ward); accord, City of Erie, supra, 529 U.S. at pp. 301-302
[“least restrictive means analysis is not required”].) “Rather, the
requirement of narrow tailoring is satisfied ‘so long as the . . . regulation
promotes a substantial government interest that would be achieved less
effectively absent the regulation.’ [Citation.] To be sure, this standard does
not mean that a time, place, or manner regulation may burden substantially
more speech than is necessary to further the government’s legitimate
interests. Government may not regulate expression in such a manner that a
40
substantial portion of the burden on speech does not serve to advance its
goals. [Citation.] So long as the means chosen are not substantially broader
than necessary to achieve the government’s interest, however, the regulation
will not be invalid simply because a court concludes that the government’s
interest could be adequately served by some less-speech-restrictive
alternative.” (Ward, at pp. 799-800, fns. omitted.) 7
The fourth O’Brien factor is satisfied here. As noted, restaurants and
bars are high risk environments for COVID-19 transmission because, among
other things, eating and drinking requires the removal of face coverings. The
government therefore has an interest in restricting restaurant operations to
reduce the spread of COVID-19. The restaurant restrictions themselves do
not implicate the First Amendment. The First Amendment is only
implicated, if at all, by the restriction on live entertainment at restaurants.
But the restriction on live entertainment at restaurants is no greater than
the restriction on restaurants themselves. It therefore does not burden any
more expression than necessary to further the government’s interest. Indeed,
it is clear that the government’s important interest in limiting COVID-19
transmission at restaurants would be achieved less effectively if a restaurant
could exempt itself from the restrictions by offering live entertainment. The
live entertainment restrictions do not run afoul of the First Amendment.
7 Although Ward involved a time, place, and manner restriction on
speech, rather than a restriction on expressive conduct, the U.S. Supreme
Court has emphasized that the test for expressive conduct should not be more
restrictive than the test for time, place, and manner restrictions on speech.
(Clark, supra, 468 U.S. at p. 298, fn. 8.) Ward’s discussion therefore informs
our analysis. (See, e.g., Krontz, supra, 136 Cal.App.4th at p. 1138 [applying
O’Brien and Ward].) The adult entertainment businesses’ briefing shows that
it is expressive conduct, not speech, that is at issue here: “The entire point of
live adult entertainment is that it is performed live.”
41
In their briefing, the adult entertainment businesses assert “there is no
evidence at all that allowing live adult entertainment establishments to
operate in some fashion, even outdoors under the protocols plaintiffs
developed, would have any effect on the spread of COVID-19.” The adult
entertainment businesses are incorrect. The State’s epidemiology and
infectious disease expert explained that the virus’s most common mode of
transmission is person-to-person, “through respiratory particles such as those
that are produced when an infected person coughs or sneezes or projects his
or her voice through speaking, singing, and other vocalization.” Therefore,
interacting with individuals outside the home, and especially gathering with
individuals from other households, increases the risk of transmission. The
expert addressed restaurants specifically: “Restaurants and bars are
considered high risk environments for transmission because they are settings
where people from different households share the same space for prolonged
periods of time. Further, eating and drinking require removal of face
coverings which can increase the spread of infectious particles. Additionally,
physical movement within the establishment, duration of time spent in the
establishment, and the degree of social mixing among individuals and groups
outside one’s household may all be significant in these sectors, which
substantially elevates the risk of transmission even where face coverings can
be worn.”
The adult entertainment businesses criticize the State’s expert for not
addressing whether live entertainment, specifically, poses any risk. But the
businesses offer live adult entertainment and restaurant service. The risk
posed by restaurants is therefore relevant. We need not, and do not, address
the risks posed by live entertainment without restaurant service.
42
The adult entertainment businesses also maintain that no COVID-19
cases have been traced back to their operations. This fact is not dispositive.
It is the risk of COVID-19 transmission that prompted the restrictions on the
adult entertainment businesses. The State and County need not wait until
an outbreak has actually occurred at a specific business location. As one
court recently explained, in upholding the Regional Stay at Home Order’s
restrictions on houses of worship, “In general, a local government is not
required to prove that a particular individual has contributed to a known
social harm, before implementing a law that seeks to prevent the harm. Just
as a restaurant with no known COVID-19 cases tied to it is bound by a valid
public health regulation, so must a house of worship that has no known
COVID-19 cases tied to it. This is especially so when the social harm sought
to be mitigated is community spread of a deadly virus, whose exact path of
contagion is hard to trace.” (South Bay United Pentecostal Church v. Newsom
(S.D.Cal. 2020) __ F.Supp.3d __ [2020 WL 7488974, at *12].)
O’Brien does not require us to consider whether the challenged
regulation leaves open ample alternative channels of communication.
(O’Brien, supra, 391 U.S. at p. 377.) That factor appears in the context of a
First Amendment challenge to a time, place, and manner restriction on
speech. (See, e.g., Ward, supra, 491 U.S. at p. 803.) But assuming without
deciding that it is relevant here, we conclude the challenged regulation
passes muster. The Blueprint for a Safer Economy allows live entertainment
at restaurants in every tier. It merely imposes capacity and venue
restrictions. Live entertainment is also allowed outside of restaurants.
Thus, there is “ample capacity to convey the dancer’s erotic message.” (City
of Erie, supra, 529 U.S. at p. 301.)
43
D
In sum, the Blueprint for a Safer Economy is a valid regulation of
expressive conduct under O’Brien and City of Erie, and the Regional Stay at
Home Order does not implicate the First Amendment at all under Acara.
The adult entertainment businesses did not make the required showing that
there was some possibility they would prevail on their claims. A preliminary
injunction was therefore unwarranted.
“A trial court may not grant a preliminary injunction, regardless of the
balance of interim harm, unless there is some possibility that the plaintiff
will ultimately prevail on the merits of the claim. [Citation.] ‘Where there
is . . . no likelihood that the plaintiff will prevail, an injunction favoring the
plaintiff serves no valid purpose and can only cause needless harm.’ ” (Aiuto
v. City & County of San Francisco (2011) 201 Cal.App.4th 1347, 1361.) The
court abused its discretion by issuing the injunction. 8
8 The adult entertainment businesses attempt to justify the preliminary
injunction based on their equal protection and due process claims. Although
they mentioned these concepts below, they were largely derivative of their
First Amendment claims. They primarily differed only in the claim of
selective enforcement, which the trial court rejected. To the extent these
claims were presented to the trial court below, they are unpersuasive. The
due process claims fail because the public health regulations are generally
applicable. (See Halverson v. Skagit County (9th Cir. 1994) 42 F.3d 1257,
1261.) The equal protection claims fail because they are coextensive with the
First Amendment claims. (See Dariano v. Morgan Hill Unified School Dist.
(9th Cir. 2014) 767 F.3d 764, 780.) The adult entertainment businesses’
“class of one” equal protection theory was not presented to the trial court, and
we will not consider it for the first time on appeal.
44
IV
Vagueness
The County parties additionally contend that the preliminary
injunction is invalid because it is unreasonably vague. “An injunction must
be narrowly drawn to give the party enjoined reasonable notice of what
conduct is prohibited.” (Thompson v. 10,000 RV Sales, Inc. (2005)
130 Cal.App.4th 950, 979.) It “must be sufficiently precise to provide a
person of ordinary intelligence fair notice that her contemplated conduct is
forbidden.” (In re Marriage of Hartmann (2010) 185 Cal.App.4th 1247, 1250.)
The injunction here prohibits the enforcement of any public health
order that would prevent the adult entertainment businesses from providing
live entertainment or restaurants from continuing to operate, “subject to
protocols that are no greater than is essential to further Defendants’ response
to control the spread of COVID.” The injunction does not identify which
“essential” protocols remain enforceable, and it provides little guidance to the
State and County parties going forward. It does not address physical
distancing, capacity limits, indoor and outdoor operation, opening and closing
times, self-service and table service, mask requirements, physical barriers,
safety and training plans, cleaning protocols, and ventilation requirements,
among many other areas that are regulated by public health authorities. It is
unreasonably vague.
The adult entertainment businesses respond only that “[t]he order is
not vague, as defendants contend, but clearly enjoins defendants from
enforcing the restrictions prohibiting outdoor operations and limiting
plaintiffs’ and other restaurant businesses to take-out and delivery.” They do
not provide any basis for their assertion that the injunction is limited in this
manner. The injunction prevents enforcement of all but “essential”
45
restrictions. And, in any event, even this gloss on the injunction is unclear.
Can the State and County parties, for example, enforce a prohibition on
indoor dining at restaurants? What about capacity restrictions, whether
indoors or outdoors? It would turn on whether such restrictions were
“essential,” but neither the injunction itself nor the adult entertainment
businesses’ interpretation resolves the issue.
The injunction does not give reasonable notice to the State and County
parties of the conduct that it prohibits. It is therefore invalid and must be
reversed for this reason as well. 9
DISPOSITION
The order granting a preliminary injunction is reversed. On remand,
the trial court is directed to enter an order denying the adult entertainment
businesses’ request for a preliminary injunction pending trial. The adult
entertainment businesses may seek to amend their claims to address
restaurant restrictions. We express no opinion on the propriety of any such
9 In light of our conclusion that the injunction must be reversed, we need
not consider the County parties’ contention that they are not the proper
parties to be enjoined.
46
amendment or the substantive issues involved. The State and County parties
are entitled to their costs on appeal.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
47