First Resort, Inc. v. Herrera et al

Filing 40

ORDER by Judge ARMSTRONG denying 30 Motion to Dismiss (lrc, COURT STAFF) (Filed on 3/11/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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7 FIRST RESORT, INC.,

Plaintiff,

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vs.

10 DENNIS J. HERRERA, in his official

Case No: C 11-5534 SBA
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS FIRST
AMENDED COMPLAINT
Docket 30

capacity as City Attorney of the City of San
11 Francisco; BOARD OF SUPERVISORS OF
THE CITY AND COUNTY OF SAN
12 FRANCISCO; and THE CITY AND
COUNTY OF SAN FRANCISCO,
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Defendants.
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Plaintiff First Resort, Inc. (“First Resort”) brings the instant action to challenge the

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constitutionality of San Francisco’s Pregnancy Information Disclosure and Protection

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Ordinance (“Ordinance”), S.F. Admin. Code, ch. 93, §§ 93.1-93.5. As defendants, First

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Resort has named the City and County of San Francisco, the San Francisco Board of

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Supervisors and San Francisco City Attorney Dennis J. Herrera (collectively “Defendants”

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or “the City”).

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The parties are presently before the Court on Defendants’ Motion to Dismiss First

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Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), which seeks the

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dismissal of First Resort’s third claim for preemption. Dkt. 30. Having read and

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considered the papers filed in connection with this matter and being fully informed, the

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Court hereby DENIES the motion for the reasons set forth below. The Court, in its

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discretion, finds this matter suitable for resolution without oral argument. See Fed. R. Civ.

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P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

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I.

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BACKGROUND
The parties are familiar with the facts of this case which are summarized herein only

to the extent they are germane to the instant motion.

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On November 3, 2011, San Francisco Mayor Edwin Lee signed the Ordinance into

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law, making it effective as of December 4, 2011. The Ordinance prohibits “limited services

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pregnancy centers” from making false or misleading statements to the public relating to

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their services. First Resort, a non-profit pregnancy counseling and health clinic which

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holds anti-abortion views, claims that the Ordinance infringes upon its constitutionally

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protected right to free expression. Am. Compl. ¶ 1, Dkt. 25.

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On November 16, 2011, First Resort commenced the instant action in this Court

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seeking to invalidate the Ordinance on the grounds that it is unconstitutionally vague and

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violates its right to free expression. The Complaint alleged that the Ordinance:

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(1) infringes on the right to freedom of expression under the First and Fourteenth

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Amendment; (2) is void for vagueness; (3) violates the Equal Protection Clause of the

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United States Constitution; and (4) is impliedly preempted by California law. Dkt. 1.

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In response to the Complaint, Defendants filed a Rule 12(b)(6) motion, which the

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Court granted in part and denied in part. The Court granted Defendants’ motion as to First

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Resort’s claim for implied preemption, but granted leave to amend to allege a claim that the

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Ordinance is preempted by California Business and Professions Code section 17500.

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Dkt. 24. On October 11, 2012, First Resort filed a First Amended Complaint (“FAC”)

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alleging three claims: (1) violation for the First and Fourteenth Amendments—Freedom of

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Expression; (2) Fourteenth Amendment—Equal Protection; and (3) Preemption. Dkt. 25.

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The matter has been fully briefed and is ripe for adjudication.

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II.

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LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal

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sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint

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may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state

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a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal
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theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In deciding a

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Rule 12(b)(6) motion, courts generally “consider only allegations contained in the

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pleadings, exhibits attached to the complaint, and matters properly subject to judicial

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notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The court is to “accept

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all factual allegations in the complaint as true and construe the pleadings in the light most

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favorable to the nonmoving party.” Outdoor Media Group, Inc. v. City of Beaumont, 506

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F.3d 895, 899-900 (9th Cir. 2007).

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To survive a motion to dismiss for failure to state a claim, the plaintiff must allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007). The allegations made in a complaint must be both

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“sufficiently detailed to give fair notice to the opposing party of the nature of the claim so

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that the party may effectively defend against it” and “sufficiently plausible” such that “it is

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not unfair to require the opposing party to be subjected to the expense of discovery.” Starr

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v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011). “Threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). Where a complaint or claim is dismissed, leave to amend

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generally is granted, unless further amendment would be futile. Chaset v. Fleer/Skybox

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Int’l, 300 F.3d 1083, 1087-88 (9th Cir. 2002).

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III.

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DISCUSSION
First Resort claims that the Ordinance is preempted by California Business and

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Professions Code section 17500, which sets forth a general prohibition against false and

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misleading advertising. FAC ¶¶ 45-49. Dkt. 30. Under California law, “[a] county or city

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may make and enforce within its limits all local, police, sanitary, and other ordinances and

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regulations not in conflict with general laws.” Cal. Const., art. XI, § 7. “The California

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Supreme Court has held that State Law is ‘in conflict with’ or preempts local law if the

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local law ‘duplicates, contradicts, or enters an area fully occupied by general law, either

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expressly or by legislative implication.’” Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d

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928, 941 (9th Cir. 2002) (quoting Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th
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893, 897 (1993)). “Local legislation is ‘duplicative’ of general law when it is coextensive

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herewith.” Sherwin-Williams, 4 Cal.4th at 898 (emphasis added).

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Citing Fireman’s Fund, Defendants contend that the Ninth Circuit has held that the

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doctrine of duplication preemption is limited to penal ordinances. Defs.’ Mot. at 4-5. This

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contention lacks merit. Though Fireman’s Fund recognized that “California courts have

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largely confined the duplication prong of the state preemption test to penal ordinances,” it

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did not expressly hold that duplication preemption applies only in cases where a penal

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ordinance is involved. 302 F.3d at 956 (emphasis added). Rather, the court explained that

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the relevant question in a duplication preemption analysis is whether the challenged

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ordinance is “coextensive with state law.” Id. In finding that the ordinance was not

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preempted, the court explained that while the local ordinance addressed “[the] same subject

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as covered by state hazardous waste laws,” it was “hardly co-extensive with [them].” Id.

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The court did not conclude that duplication preemption was inapposite, as a matter of law,

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on the ground that a civil ordinance was involved.

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Defendants next argue that no California court has ever struck down a civil

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ordinance under the doctrine of duplication preemption without also finding that the

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ordinance is barred by conflict or implied preemption. Defs.’ Mot. at 5-6. In addition, they

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assert that the ostensible policies underlying duplication preemption, i.e., avoiding

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jurisdictional conflicts and double jeopardy concerns, are not implicated by the Ordinance.

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Id. The import of these arguments is unclear. As noted, the salient question for purposes of

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analyzing a claim of duplication preemption is whether the local ordinance is “co-

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extensive” with a particular state law. See Sherwin-Williams, 4 Cal.4th at 898.

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Defendants’ motion does not directly confront that specific issue. As such, the Court

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declines to consider the substantive merit of First Resort’s preemption claim at this

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juncture. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003) (“Our

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adversarial system relies on the advocates to inform the discussion and raise the issues to

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the court.”).

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IV.

CONCLUSION

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For the reasons set forth above,

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IT IS HEREBY ORDERED THAT:

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Defendants’ Motion to Dismiss First Amended Complaint is DENIED.

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2.

Within fourteen (14) days of the date this Order is filed, Defendants shall file

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their Answer to the FAC.
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The parties shall appear for a telephonic Case Management Conference on

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April 25, 2013 at 2:30 p.m. Prior to the date scheduled for the conference, the parties shall

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meet and confer and prepare a joint Case Management Conference Statement which

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complies with the Standing Order for All Judges of the Northern District of California and

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the Standing Orders of this Court. Plaintiff shall assume responsibility for filing the joint

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statement no less than seven (7) days prior to the conference date. Plaintiff’s counsel is to

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set up the conference call with all the parties on the line and call chambers at (510) 637-

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3559. NO PARTY SHALL CONTACT CHAMBERS DIRECTLY WITHOUT PRIOR

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AUTHORIZATION OF THE COURT.

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4.

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IT IS SO ORDERED.

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This Order terminates Docket 30.

Dated: March 11, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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