Price v. Cnty. of L. A.

504 F.Supp.3d 1099

Dennis PRICE

v.COUNTY OF LOS ANGELES et al.

Case No.: 2:20-cv-04911-SB-KS

United States District Court, C.D. California.

Filed December 1, 2020

Dennis Jay Price, II, Center for Disability Access, San Diego, CA, for Dennis Price.

Bryan M. Wittlin, Valerie Elizabeth Alter, Kent R. Raygor, Sheppard Mullin Richter and Hampton LLP, Los Angeles, CA, for County of Los Angeles.

Proceedings: ORDER GRANTING MOTION TO DISMISS (DKT. NO. 27) AND DENYING MOTION FOR PRELIMINARY INJUNCTION (DKT. NO. 28)

STANLEY BLUMENFELD, JR., U.S. District Judge

This case involves a challenge to specific government curfews issued six months ago following an incident that resulted in nationwide protests, violence, and the deployment of the National Guard. Concerned about their ability to protect their residents during these extraordinary times from looting, rioting, and other criminal acts, the City of Burbank and the County of Los Angeles issued orders establishing curfews of general applicability that lasted several evenings. Plaintiff Dennis Price filed suit seeking to declare unconstitutional and enjoin these orders. While conceding that the government has the right to order general curfews to protect public health, Plaintiff contends that the June curfew orders crossed the constitutional line by targeting protests.

Before the Court is Defendant City of Burbank's motion to dismiss Plaintiff's first amended complaint primarily on mootness grounds, Dkt. No. 27, and Price's second motion for preliminary injunction to enjoin the 6-month-old curfews, Dkt. Nos. 28, 28-1. As to the motion to dismiss, Price filed an opposition, Dkt. No. 37, and Burbank filed a reply, Dkt. No. 38. As to the motion for preliminary injunction, Burbank and co-defendant County of Los Angeles filed oppositions, Dkt. Nos. 33, 35, and Price filed a reply, Dkt. No. 39.

I. BACKGROUND

Following the death of George Floyd in late May 2020, widespread protests arose across the country, including in Los Angeles County. See Dkt. No. 8 (Compl.) ¶ 11. As a result of the large protests and potential threats to public safety, some cities and counties implemented mandatory curfews by emergency order in their jurisdictions. Id. ¶ 13.

On May 30, 2020, the County issued an emergency proclamation, indicating "a curfew [was] necessary to preserve public order and safety." Id. ¶ 26; Compl. Ex. 1. The County issued four daily curfew orders on May 31 and June 1-3, 2020. Dkt. No. 33-1 (County RJN) Exs. 3-6. The first three curfews were imposed from 6:00 p.m. to 6:00 a.m. and the fourth from 9:00 p.m. to 5:00 a.m. Id. Likewise, Burbank, a city within Los Angeles County, issued an emergency proclamation on June 1, 2020. Compl. Ex. 2. The proclamation acknowledged that "[p]eaceful demonstrations are essential to our democratic system," but also explained that "[d]uring these protests ... individuals have engaged in dangerous and unlawful activity, threatening the safety of lawful demonstrators, surrounding businesses, communities, and first responders." Id. Burbank concluded that its ordinary resources to protect the health and safety of its residents were insufficient to address the extraordinary circumstances:

The above conditions constitute the existence of conditions of extreme peril to the safety of persons and property within the City of Burbank, which conditions are likely to be beyond the control of the services, personnel, equipment and facilities of the City of Burbank and require the combined forces of other political subdivisions to combat. Based on these conditions declaring an emergency is necessary for the preservation of public health, safety and order.

Id.

Burbank therefore imposed a curfew from 5:00 p.m. to 6:00 a.m. Id. The curfew applied to all but "peace officers, fire fighters, first-responders and National Guard or other military personnel deployed to the area, credentialed media personnel, individuals traveling to and from work, people experiencing homelessness and without access to a viable shelter, and individuals seeking medical treatment." Id. The curfew was to remain in effect until lifted by Burbank's Director of Emergency Services or until the emergency proclamation lapsed (and the emergency proclamation was to expire in seven days unless further ratified by the City Council). Id.

Plaintiff Dennis Price is a resident of Burbank, California who was allegedly impacted by both sets of curfew orders. On June 2, 2020, Price filed a complaint against the County and Burbank. Dkt. No. 1. On June 3, 2020, Price filed a first amended complaint for declaratory and injunctive relief against the County and Burbank. Dkt. No. 8. This complaint alleges three constitutional violations: (1) violation of the right to assemble, (2) violation of the right to free movement, and (3) violation of due process for lack of notice of the curfews. Compl. ¶¶ 37-59.

On June 3, 2020, Price applied ex parte for a temporary restraining order to enjoin enforcement of the County and Burbank's curfew orders. Dkt. No. 11. Two days later, however, Price voluntarily withdrew his application because both Defendants had ceased enforcing a curfew and Defendants "cessation of the offending conduct ... mooted the urgent need [for] enjoining the curfew orders." Dkt. No. 21. On July 15, 2020, Price moved for a preliminary injunction against the County and Burbank, and, on the same day, Burbank moved to dismiss Price's first amended complaint for mootness and lack of standing. Dkt. No. 27 (MTD). Price filed an opposition. Dkt. No. 37 (Opp. to MTD).¹

II. REQUEST FOR JUDICIAL NOTICE

Burbank and the County request that this Court take judicial notice of several materials in support of their respective positions.

Burbank requests judicial notice of (1) a proclamation of the County's State of Local Emergency, (2) a June 1, 2020 Twitter post from the County providing information about curfew, (3) the June 9, 2020 Burbank City Council Meeting Agenda, (4) the June 1, 2020 Burbank Proclamation of Local Emergency, and (5) the June 1-3, 2020 Burbank Newsroom posts concerning the curfew. Dkt. Nos. 27-1, 35-1.

The County requests judicial notice of fifteen items: (1) the orders and proclamations made by the Los Angeles County Board of Supervisors and the Governor of the State of California, set forth in Exhibits 1 to 6; (2) multiple Twitter posts from county officials announcing the curfews, set forth in Exhibit 7; (3) the record of official motions and votes of the Los Angeles County Board of Supervisors, set forth in exhibits 8 to 11; and (4) arrest logs and an incident report from the Burbank Police Department, set forth in Exhibits 12 to 15. Dkt. No. 33-1.

The Court GRANTS the unopposed requests for judicial notice. See Fed. R. Evid. 201(b) (permitting judicial notice of facts that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned"). In doing so, the Court considers the existence of the publicly available records (i.e., the undisputed matters of public record), and not the truth of any facts in those records that are reasonably subject to dispute. See Lee v. City of Los Angeles , 250 F.3d 668, 689-90 (9th Cir. 2001).

III. BURBANK'S MOTION TO DISMISS

A. Legal Standard

Burbank moves to dismiss Price's first amended complaint on two grounds. First, Burbank argues that Price does not allege a concrete injury in fact and thus fails to establish standing. MTD 5-7. Second, Burbank contends Price's complaint is moot because Burbank's curfews have ended and not recurred. MTD 8-9.

Burbank's motion is improperly filed under Federal Rule of Civil Procedure 12(b)(6). MTD 4; see Maya v. Centex Corp. , 658 F.3d 1060, 1067 (9th Cir. 2011) ("[L]ack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)."). The Court thus construes Burbank's motion as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Abukar v. United States , No. C11-1708-MJP-BAT, 2012 WL 1598056, at *1 (W.D. Wash. Apr. 11, 2012) (construing Rule 12(b)(6) motion under Rule 12(b)(1) ).

A Rule 12(b)(1) motion may be either facial (where the jurisdictional defects are plain on the face of the pleading) or factual (where the jurisdictional defects are apparent from evidence extrinsic to the complaint). Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Ass'n of Am. Med. Colls. v. United States , 217 F.3d 770, 778-79 (9th Cir. 2000). To meet this burden, the pleading party must show, "affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction." Tosco Corp. v. Cmtys. for a Better Env't , 236 F.3d 495, 499 (9th Cir. 2001). If a plaintiff fails to establish subject matter jurisdiction, "the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Id. (citation omitted).

B. Mootness

Price's claims are moot because Burbank's curfew order undisputedly expired on June 3, 2020. See Dkt. No. 21 (expiration of curfew acknowledged by plaintiff); accord Reply to Opp. to MTD 5 (expiration of curfew acknowledged by Burbank). Under Ninth Circuit law, there is no ongoing controversy. See Wilson v. Webster , 467 F.2d 1282, 1283 (9th Cir. 1972) (holding that "the District Court acted properly in refusing preliminary relief and in dismissing the action ... [for] preventive injunctive relief" when "plaintiffs' proof [of repetition] was lacking in any showing of imminent future injury"); cf. Burke v. Barnes , 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987) (expiration of statute rendered case moot).

The only question is whether an exception to the mootness doctrine applies—namely, the exception for controversies that are "capable of repetition, yet evading review." This exception applies "only in...