Vivid Entertainment LLC et al v. Jonathan Fielding et al

Filing 44

ORDER by Judge Dean D. Pregerson: granting 24 MichaelWeinstein, Marijane Jackson, Arlette De La Cruz, Mark McGrath,Whitney Engeran, and the Campaign Committee Yes on B, Major Funding by the AIDS Healthcare Foundation Motion to Intervene. (lc). Modified on 4/16/2013. (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VIVID ENTERTAINMENT, LLC;
CALIFA PRODUCTIONS, INC.;
JANE DOE a/k/a KAYDEN KROSS,

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Plaintiff,
v.
JONATHAN FIELDING, DIRECTOR
OF LOS ANGELES COUNTY
DEPARTMENT OF PUBLIC HEALTH;
JACKIE LACEY, LOS ANGELES
COUNTY DISTRICT ATTORNEY,
and COUNTY OF LOS ANGELES,

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Defendants.
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___________________________

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Case No. CV 13-00190 DDP (AGRx)
ORDER GRANTING MOTION TO
INTERVENE
[Dkt. No. 24]

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Presently before the court is Proposed Intervenors Michael

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Weinstein, Marijane Jackson, Arlette De La Cruz, Mark McGrath,

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Whitney Engeran, and the Campaign Committee Yes on B, Major Funding

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by the AIDS Healthcare Foundation (collectively “Proposed

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Intervenors”)’s Motion to Intervene.

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submissions and heard oral argument, the court adopts the following

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order.

Having considered the parties

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I. BACKGROUND

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On November 6, 2012, 57% of voters in Los Angeles County

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approved Measure B.

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of adult films to obtain a permit from the Los Angeles County

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Department of Public Health before production can take place.

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¶ 41.)

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revocation, a producer must pay a fee and evidence successful

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completion of a blood borne pathogen training course.

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Additionally, Measure B requires the use of condoms by performers

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for all acts of anal or vaginal sex during the production of adult

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films.

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(Compl. ¶ 36.)

Measure B requires producers

(Id.

To obtain the permit, valid for two years but subject to

(Id.)

(Id. ¶ 42.)

Plaintiffs are corporations and individuals involved in the

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adult film industry as producers, employers, and performers.

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¶¶ 8-11.)

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Jonathan Fielding, Director of Los Angeles County Department of

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Public Health, in his official capacity; Jackie Lacey, Los Angeles

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County District Attorney, in her official capacity; and the County

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of Los Angeles (collectively “Defendants”).

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(Id.

On January 10, 2013, they filed this action against

Proposed Intervenors were the official proponents of Measure

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B.

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Measure B, collected signatures to qualify the Measure for the

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November 2012 ballot, submitted the signatures for verification,

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raised funds, and drafted an argument for the appearance of the

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Measure on the ballot.

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this Motion to Intervene on March 1, 2013.

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II. LEGAL STANDARD

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Proposed Intervenors drafted the language that would become

(Weinstein Decl. ¶¶ 3, 5-7.)

They filed

Rule 24(a)(2) of the Federal Rule of Civil Procedure governs
intervention as of right and provides, in pertinent part: “On
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timely motion, the court must permit anyone to intervene who . . .

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claims an interest relating to the property or transaction that is

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the subject of the action, and is so situated that disposing of the

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action may as a practical matter impair or impede the movant’s

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ability to protect its interest, unless existing parties adequately

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represent that interest.”

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Fed. R. Civ. P. 24(a)(2).

To intervene as of right under Rule 24(a)(2), the movant must

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demonstrate that: “(1) it has a significant protectable interest

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relating to the property or transaction that is the subject of the

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action; (2) the disposition of the action may, as a practical

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matter, impair or impede the applicant's ability to protect its

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interest; (3) the application is timely; and (4) the existing

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parties may not adequately represent the applicant's interest.”

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United States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir.

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2002)(quoting Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir.

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1998)).

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the requirements for intervention have been met.

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The movant-intervenor bears the burden of showing that all
Id. at 397.

In determining whether intervention is appropriate, courts are

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guided by practical and equitable considerations, and the

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requirements for intervention are broadly interpreted in favor of

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intervention.

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Council v. U.S. Forest Serv., 66 F.3d 1489, 1493 (9th Cir. 1995).

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Additionally, under Rule 24(b)(1)(B), a court “may permit” a

Donnelly, 159 F.3d at 409; Forest Conservation

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party to intervene who has (1) timely made a motion to intervene

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and (2) has a claim or defense that shares with the main action a

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common question of law or fact.

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III. DISCUSSION

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Fed. R. Civ. P. 24(b)(1)(B).

A. Intervention and Article III Standing
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Plaintiffs assert that in order to intervene under Rule 24,

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Proposed Intervenors must meet not only the criteria for

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intervention of right under the Federal Rules but also must

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independently fulfill the requirements of Article III standing.

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(Opp. at 15-18.)

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Ninth Circuit has explicitly addressed this issue.

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Proposition 8 Official Proponents, 587 F.3d 947, 950 n.2 (9th Cir.

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2009)(“We have yet to decide whether putative intervenors must

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satisfy standing independently of the parties to the case. The

Neither the United States Supreme Court nor the
Perry v.

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circuits are split on this issue.”); see also Prete v. Bradbury,

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438 F.3d 949, 955 n.8 (9th Cir. 2006)(citing cases that demonstrate

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circuit split).

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intervention without requiring a demonstration of Article III

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standing.

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525, 527 (9th Cir. 1983)(internal quotation marks

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omitted)(mentioning a case in which “a public interest group was

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entitled as a matter of right to intervene in an action challenging

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the legality of a measure which it had supported,” and noting that

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“Rule 24 traditionally has received a liberal construction in favor

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of applicants for intervention.”); Doe v. Harris, no. C12-5713 THE,

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2013 WL 140053, at *2 (N.D. Cal. Jan. 10, 2013)(granting permissive

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intervention and stating that proponents of a ballot proposition

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“are not required to demonstrate that they have independent Article

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III standing in order to be permitted to intervene in this

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action”).

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However, the Ninth Circuit has repeatedly allowed

See, e.g., Sagebrush Rebellion, Inc., v. Watt, 713 F.2d

Because of the “liberal construction” of Rule 24 in this
circuit, the court declines to require that Proposed Intervenors

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meet not only the Rule 24 requirements but also satisfy the

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requirements for Article III standing.

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B. Intervention as of Right

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Proposed Intervenors argue that they are entitled to intervene

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as a matter of right. Defendants do not oppose the Motion.

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Plaintiffs do not challenge Proposed Intervenors’ assertion that

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they meet the first three criteria but do challenge their assertion

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that they meet the fourth criterion (inadequate representation of

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interests).

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The court will nonetheless consider whether Proposed

Intervenors meet all four Rule 24(a)(2) criteria.
1. Timeliness
To determine whether a motion to intervene is timely, the

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court considers the following criteria: “(1) the stage of the

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proceedings; (2) whether the parties would be prejudiced; and (3)

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the reason for any delay in moving to intervene.”

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Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996).

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Nw. Forest Res.

Here, the Complaint was filed on January 10, 2013, and served

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on January 14, 2013. The Answer was initially due on February 4,

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2013, and the parties stipulated to a 23-day extension, making the

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Answer due on February 27.

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on March 1, 2013.

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Proposed Invervenors filed this Motion

The court finds that Proposed Intervenors’ Motion was filed at

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an early stage of the proceedings and that there is no evidence of

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any delay in so filing, thus meeting the first and third criteria.

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Neither Plaintiffs nor Defendants argue that they would be

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prejudiced by the timeliness of the Motion.

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finds that the second criterion is also met, and that the Proposed

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Intervenors’ Motion was timely.
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The court therefore

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2. Significant Protectable Interest

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Proposed Intervenors argue that they have a significant

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protectable interest in defending Measure B because they were the

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proponents of the ballot measure.

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California Supreme Court decision articulating the particular

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interests of ballot measure proponents, grounded in the California

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political process:

They point to the recent

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[B]ecause the initiative process is specifically intended

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to enable the people to amend the state Constitution or

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to enact statutes when current government officials have

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declined to adopt (and often have publicly opposed) the

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measure in question, the voters who have successfully

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adopted an initiative measure may reasonably harbor a

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legitimate concern that the public officials who

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ordinarily defend a challenged state law in court may

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not, in the case of an initiative measure, always

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undertake such a defense with vigor or with the

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objectives and interests of those voters paramount in

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mind. As a consequence, California courts have routinely

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permitted the official proponents of an initiative to

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intervene or appear as real parties in interest to defend

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a challenged voter-approved initiative measure in order

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to guard the people's right to exercise initiative power

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or, in other words, to enable such proponents to assert

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the people's, and hence the state's, interest in

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defending the validity of the initiative measure.

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Allowing official proponents to assert the state's

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interest in the validity of the initiative measure in
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such litigation (along with any public officials who may

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also be defending the measure) (1) assures voters who

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supported the measure and enacted it into law that any

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residual hostility or indifference of current public

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officials to the substance of the initiative measure will

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not prevent a full and robust defense of the measure to

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be mounted in court on the people's behalf, and (2)

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ensures a court faced with the responsibility of

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reviewing and resolving a legal challenge to an

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initiative measure that it is aware of and addresses the

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full range of legal arguments that reasonably may be

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proffered in the measure's defense. In this manner, the

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official proponents' general ability to appear and defend

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the state's interest in the validity of the initiative

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measure and to appeal a lower court judgment invalidating

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the measure serves to enhance both the fairness of the

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judicial process and the appearance of fairness of that

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process.

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Perry v. Brown, 52 Cal. 4th 1116, 1125-26 (2011) (internal citation

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and quotation marks omitted).

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proponents of a ballot measure are considered to have a protectable

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interest that they have assumed on behalf of the state and the

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voters, regardless of any separate, individual interest in the

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measure that proponents may be able to demonstrate.

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In short, under California law

Consistent with the California Supreme Court decision, the

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Ninth Circuit has held that initiative proponents have an interest

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sufficient to meet the Rule 24 requirements.

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F.3d at 954(internal quotation marks omitted)(“for purposes of
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See, e.g. Prete, 438

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intervention as of right, a public interest group that has

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supported a measure (such as an initiative) has a significant

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protectable interest in defending the legality of the measure”).

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It is uncontested that Proposed Intervenors were the official

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proponents of Measure B. (See generally Weinstein Decl.)

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the court finds that they have a significant protectable interest

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in the subject matter of the litigation, sufficient to support

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intervention.

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As such,

3. Impairment of Interests
“[I]f an absentee would be substantially affected in a

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practical sense by the determination made in an action, he should,

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as a general rule, be entitled to intervene.”

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Biological Diversity v. Berg, 268 F.3d 810, 822 (9th Cir.

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2001)(quoting Fed. R. Civ. P. 24 advisory committee’s

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notes)(internal quotation marks omitted).

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decision on [a ballot measure supported by a public interest group]

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may, as a practical matter, impair the interest held by the public

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interest group.”

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challenging the constitutionality of Measure B and seeking to

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enjoin its enforcement, a decision in their favor would impair the

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interests of Proposed Intervenors and their organization, the AIDS

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Healthcare Foundation, who were the official proponents of the

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ballot measure and who have an interest in taking steps they deem

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necessary to ensure workplace protection from sexually transmitted

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diseases for adult film performers.

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F.2d at 528 (“An adverse decision in this suit would impair the

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society’s interest in the preservation of birds and their

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habitats.”).

Prete, 438 F.3d at 954.

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Sw Center for

“[A]n adverse court

Because Plaintiffs are

See Sagebrush Rebellion, 713

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Plaintiffs do not challenge Proposed Intervenors’ ability to

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meet this criterion, and the court agrees that Proposed

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Intervenors’ interests would be impaired by a decision in favor of

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Plaintiffs in this suit.

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the third criterion for intervention.

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Accordingly, Proposed Intervenors meet

4. Adequate Representation of Interests

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To determine whether a party will adequately represent the

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interests of a proposed intervenor, the court considers “whether

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[that party] will undoubtedly make all of the intervenor’s

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arguments, whether [that party] is capable of and willing to make

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such arguments, and whether the intervenor offers a necessary

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element to the proceedings that would be neglected.”

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Id.

Proposed Intervenors argue that the County will not adequately

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represent their interests because the County Board of Supervisors

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voted against adopting Measure B, County Counsel expressed

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skepticism toward Measure B, and the Defendants desire the same

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legal outcome as Plaintiffs.

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Defendants have indicated that they “have declined to defend the

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constitutionality of Measure B and have taken a position of

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neutrality regarding whether Measure B is constitutional and/or

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preempted by California law.”

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of Non-Opposition to Proposed Intervenors’ Motion to Intervene at

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2.)1

(Mot. at 16-17.)

Most significantly,

(Defendants’ Supplemental Statement

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This is a more explicit statement of Defendants’ position on
defending the Measure than that offered in their Answer, where they
stated:
Plaintiffs’ Complaint presents important constitutional
questions that require and warrant judicial
determination. In a constitutional democracy, it is the
role of the courts to determine and resolve such
(continued...)
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Plaintiffs argue in their Opposition, submitted before they

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had the benefit of Defendants’ Supplemental Statement of Non-

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Opposition, that Proposed Intervenors have not demonstrated that

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they are not adequately represented by Defendants because, since

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the Measure became law, Defendants have acted to implement,

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enforce, and defend it.

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to “producers of adult films in Los Angeles County” explaining the

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ordinance and its requirements.

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They also point out that Proposed Intervenors do not cite any

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statements made by Defendant critical of Measure B dating from

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after it became law.

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evidence in the record or the Motion from after November 6, 2012 to

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support Proposed Intervenors’ claim that Defendants desire Measure

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B to be declared unconstitutional.”

(Opp. at 4.)

(Id.)

They point to a letter sent

(Corn-Revere Decl. ¶ 2, Exh. A.)

They assert further that “there is no

(Opp. at 12.)

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The court finds that Defendants’ clear statement that it does

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not intend to defend Measure B in this litigation is sufficient to

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indicate that they are not adequately representing Proposed

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Intervenors’ interests.

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they do not intend to make arguments in support of the

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constitutionality and other validity of the Measure, there is a

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clear indication of their inadequate representation of the

Insofar as Defendants have indicated that

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(...continued)
questions. To the extent that Plaintiffs have stated a
justiciable controversy, setting forth federal
constitutional challenges to the County of Los Angeles
Safer Sex in the Adult Film Industry Act (“Measure B”),
it is appropriate for the federal courts to determine and
resolve those challenges. Defendants encourage the Court
to resolve the merits of this action expeditiously.
(Answer at 1.) Among their affirmative defenses, Defendants
“reserve the right to have proponents of Measure B intervene and
defend the constitutionality of Measure B in light of Perry v.
Brown, 52 Cal.4th 1116 (2011).” (Id. at 13.)
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interests of Proposed Intervenors.

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defend the Measure substantively, Proposed Intervenors will offer

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an element to the proceedings that would otherwise be neglected,

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namely, a full defense of the constitutionality and validity of the

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Measure.

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have totally declined to defend the initiative’s validity at all, .

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. . it would clearly constitute an abuse of discretion for a court

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to deny the official proponents of an initiative the opportunity to

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participate as formal parties in the proceeding, either as

Because Defendants decline to

“[I]n an instance . . . in which the public officials

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interveners or as real parties in interest, in order to assert the

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people’s and hence the state’s interest in the validity of the

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measure . . . .” Perry v. Brown, 52 Cal.4th at 1126.2

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The court finds that Defendants will not adequately represent
the interests of Proposed Intervenors.

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5. Conclusion on Intervention as of Right

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Proposed Intervenors have met all four factors under Rule
24(a)(2) and the court therefore GRANTS intervention.

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C. Permissive Intervention

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Because the court has found that intervention by right is

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appropriate, it need not consider permissive intervention.

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///

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///

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///

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Even if the government defendants were defending the
measure, intervention by the official proponents might still be
warranted. Perry v. Brown, 52 Cal.4th at 1126 (“[I]n most instances
it may well be an abuse of discretion for a court to fail to permit
the official proponents of an initiative to intervene in a judicial
proceeding to protect the people’s right to exercise their
initiative power even when one or more government defendants are
defending the initiative’s validity in the proceeding.”).
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IV. CONCLUSION
For these reasons, the court GRANTS the Motion to Intervene.
IT IS SO ORDERED.

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Dated: April 16, 2013
DEAN D. PREGERSON
United States District Judge

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