60 Cal.App.5th 58
Cal. Ct. App.2021Background
- Plaintiffs are two San Diego adult‑entertainment businesses (Pacers and Cheetahs) that also operate as restaurants; they sued the County of San Diego, the County public health officer, the California Department of Public Health, and the Governor claiming COVID‑19 restrictions banning live adult performances violated the First Amendment.
- Plaintiffs sought declaratory relief, a §1983 injunction, and a writ, and obtained a TRO and then a preliminary injunction from the superior court allowing live performances and enjoining enforcement of COVID‑related restaurant restrictions in San Diego County "subject to protocols that are no greater than is essential."
- The superior court found defendants had not produced evidence that the businesses or restaurants complying with protocols increased COVID‑19 risk, and it broadly enjoined enforcement of restaurant restrictions (not pleaded or litigated).
- Defendants appealed; the appellate court granted an emergency stay and reviewed the injunction.
- The Court of Appeal reversed: the injunction was overbroad and procedurally defective (defendants lacked notice and opportunity to litigate restaurant restrictions), plaintiffs were unlikely to prevail on the merits (First Amendment principles applied), and the injunction was unconstitutionally vague.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope/due process: Can the court enjoin restaurant restrictions not pleaded or litigated? | Plaintiffs argued the court could and that defendants effectively invited broader review; injunction needed to protect expressive conduct. | Defendants argued they had no notice or opportunity to litigate restaurant restrictions; injunction exceeds claims and violates due process. | Reversed: injunction unlawfully granted beyond the pleaded live‑entertainment claim; defendants lacked notice/opportunity. |
| First Amendment challenge to restrictions on live adult entertainment under the Blueprint/restaurant guidance | Plaintiffs argued the bans were content‑based or, if content‑neutral, failed intermediate scrutiny and were not narrowly tailored. | Defendants argued restrictions are content‑neutral public‑health measures and survive O'Brien/related tests. | Plaintiffs unlikely to prevail; restrictions are content‑neutral/time/place/manner or incidental burdens and lawful under O'Brien/City of Erie. |
| Whether the Regional Stay at Home Order implicates the First Amendment | Plaintiffs argued exceptions (e.g., outdoor worship/protests) show discriminatory, content‑based treatment. | Defendants argued the order is a generally applicable public‑health regulation that does not target expressive activity (Arcara). | Order does not implicate the First Amendment as applied to restaurant operations; rational‑basis review applies. |
| Vagueness of the injunction | Plaintiffs said the injunction clearly restores restaurant/outdoor operations and prevents enforcement of take‑out‑only limits. | Defendants said the injunction’s reservation for protocols “no greater than is essential” is indefinite and gives no guidance on specifics (capacity, distancing, masks, indoor vs outdoor). | Reversed also for vagueness: injunction fails to give fair notice of what restrictions remain enforceable. |
Key Cases Cited
- Arcara v. Cloud Books, Inc., 478 U.S. 697 (U.S. 1986) (generally applicable public‑health or nuisance regulation does not necessarily implicate the First Amendment).
- United States v. O'Brien, 391 U.S. 367 (U.S. 1968) (test for regulation of expressive conduct).
- City of Erie v. Pap's A.M., 529 U.S. 277 (U.S. 2000) (applies O'Brien to nude dancing; regulation upheld where unrelated to suppression of expression).
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time/place/manner tailoring standard).
- Clark v. Community for Creative Non‑Violence, 468 U.S. 288 (U.S. 1984) (intermediate scrutiny principles for expressive conduct/time, place, manner analysis).
- F.C.C. v. Beach Communications, Inc., 508 U.S. 307 (U.S. 1993) (rational‑basis review for social/economic regulations).
- Dream Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004) (level of scrutiny depends on whether regulation aims to suppress expression).
- Krontz v. City of San Diego, 136 Cal.App.4th 1126 (Cal. Ct. App. 2006) (nude dancing is expressive conduct within the outer ambit of the First Amendment).
- Butt v. State of California, 4 Cal.4th 668 (Cal. 1992) (preliminary injunction standards).