First Resort, Inc. v. Dennis Herrera

OWENS, Circuit Judges. Concurrence Judge TASHIMA OPINION NELSON, Senior Judge: Circuit (“First Resort, Resort”) First Inc. chal- lenges the constitutionality of San Francis- Pregnancy co’s Information Disclosure and (“the Ordinance”), Protection Ordinance law designed protect to indigent women facing unexpected pregnancies from the posed by harms false or misleading adver- tising by limited services pregnancy cen- (“LSPCs”). ters Code, S.F. Admin. ch. 93 §§ 93.1-93.5. The district court granted in Stephen A. Tuggy (argued) Kelly and S. part Appellees’ (collectively, City”) “the Biggins, LLP, Locke Lord Angeles, Los dismiss, motion to denied First Resort’s California, for Plaintiff-Appellant. summary motion for judgment, grant- and Erin (argued) B. Bernstein and Matthew Appellees’ ed summary cross-motion for Goldberg, Deputy City Attorneys; judgment. Yvonne First appeals Resort now those Meré, R. Chief of Complex and jurisdiction Affirmative decisions. have pursuant We Litigation; Herrera, Dennis J. City Attor- 28 U.S.C. affirm We the district ney; City Attorney, Office court and hold San Fran- the Ordinance is constitu- cisco, California; tional Defendants-Appellees. preempted by and not state law. Eisenberg, Jonathan M. Deputy Attor- BACKGROUND General; ney Mark R. Beckington, Super- 1. First Resort vising Deputy General; Attorney Douglas Woods, J. Senior Attorney Assistant Gen- Resort, LSPC, Until First an oper- eral; Kenealy, Kathleen A. Chief Assistant ated a state-licensed community medical General; Attorney Office of Attorney clinic and advertised its services San contraception, pro- gency the name “First Resort.” or referrals under Francisco operated prob- has its of such has become a First Resort viders Since and “Third Box” of national This issue has importance. clinic under names lem corpora- subject As non-profit congressional report Circle.” of a “Support been tion, provides pregnancy- free proposed legislation. See Mi- and federal Comm, services, test- including pregnancy Reform, nority related of H. on Gov’t Staff ultrasounds, Re- counseling. First ing, Div., Special Investigations False & Mis- “to goal is build an abortion-free sort’s leading Health Provided Information world,” provide therefore it does not Federally Pregnancy Funded Resource contraception to emergency (the abortions (July “Waxman Re- Centers patients its nor does it refer patients, its Stop Advertising for port”); Deceptive facilities such services. Women’s Services Act of S. (2013) (“A Cong. 113th Bill direct the [t]o target women Resort’s clients are prescribe Trade Federal Commission un- proceed unsure how to who are prohibiting deceptive rules women planned pregnancies, including ”). congressional services.... abortion considering operating abortion. While report pregnancy found certain re- Resort,” under name “First website “frequently provide source centers fail to online paid-for utilized advertis- clinic medically accurate information” Adwords, services, such as ing Google majority pregnancy “the vast centers” Upon its intended audience. search- reach during investigation contacted misrep- keywords “San for certain such as ing consequences resented medical Francisco,” “abortion,” “emergency Report Waxman at 14. The re- abortion. direct- contraception,” internet users were further that while port concluded “[t]his Resort to First Resort’s website. First ed may tactic in frightening preg- effective advertising compete online uses its teenagers discourag- nant and women and providers for viewers’ attention. abortion abortionf,]” ing it “denies vital [them] anti- Although First has a clear Resort information, health them prevents from agenda, the clinic advertised itself abortion decision, making an and is not an informed organi- online as an unbiased and neutral accepted public practice.” health Id. information, provided zation that “abortion resources, compassionate governments for support country, and Local around the Francisco, including in pregnancies” women” with “unintended San have also “considering sought deceptive practices The web- to curtail the who are abortion.” pregnancy August further stated that First Resort service centers. On site Cohen, Supervisor the resources “equip[s] [women] with Malia member need to make deci- the Board of [they] Supervisors City a well-informed (“the options,” County of sion about and offered and San Francisco [their] Board”), procedures legislation about abortion and introduced aimed at information Notably, advertising preventing deceptive practices. and such That costs. website day, Attorney did not Resort’s sent materials mention First same First pro- expressing anti-abortion stance or that did Resort a letter his “serious con- misleading vide referrals abortions. First cerns” about Resort’s ad- and asking vertisements by Misleading Advertising False and clarify “to that advertising “correct” Clinics referrals clinic does offer or make advertising by and abortion services.” This is such misleading False abortions, provide City Attorney that do not emer- sent First Resort. clinics letter meeting, “openly acknowledge, At an October Board their advertising pro- facilities, commented on the supervisors various and their they pro- that do not stated, Supervisor Cohen posed legislation. vide emergency abortions or contraception you purpose “I and want to remind or refer to other providers clients of such protect intent of Ordinance is to con- this service[,]” “seek others to mislead women by pregnancy-related sumers of contemplating believing abortion into that prohibiting knowingly dis- [LSPCs] their facilities offer abortion services and or seminating advertising false 93.2(6). § counseling.” unbiased Id. “Be- they pro- information about the services cause the time-sensitive and constitu- said, “we Supervisor vide.” Weiner are ob- tionally protected nature of the decision to balancing ... viously rights constitutional terminate a pregnancy, false and mislead- here,” very noting “we’re all conscious ing clinics that not offer do Amendment,” of the First “this or refer clients for abortion emergency narrowly has been a drafted ordinance.” contraception special concern to the Disagreeing colleagues, Supervi- with his 93.2(9). City.” § Id. This is because argued proponents sor Elsbernd that “the believing “[w]hen a woman is misled into legislation of this made clear that [have] that a clinic offers services that it does not Resort,” target is their offer, in fact she loses time crucial to the testimony, “there no documenta- has been decision a pregnan- whether to terminate tion, woman, any any no ser- affidavits cy,” “may option also lose the vice, seeking someone service who has particular procedure, choose a to termi- been misled.” nate a pregnancy all.” Id. The “Find- 25, 2011, passed On October the Board ings” emphasizes section also in a vote. the Ordinance ten-to-one The “City respects right of [LSPCs] signed on Novem- Ordinance was into law against counsel abortions ... and the 3, 2011, ber took effect December Chapter regu- does not intend this 4, 2011. late, advocacy.” limit or curtail such Id. 93.2(10). 3. The Ordinance addition, In “Findings” section notes amended the San .Fran- City’s financial In relevant concerns. Code, adding Chapter cisco Administrative that if particular, explains 93.5, prohibit “to through Sections 93.1 women chosen to terminate a “who have making from false or [LSPCs] delayed by pregnancy are misled and the public pregnancy- the about statements to CPCs, pro- advertising false the cost per- related the centers offer or services viding options and expensive more invasive form.” into five The Ordinance divided facilities, may City fall the upon health (1) (2) (3) “Title,” “Findings,” sections: which of last provide the medical services (4) (5) “Violation,” “Definitions,” “En- City’s indigent resort for population.” the generally forcement.” Admin. See S.F. 93.2(11). §Id. Code, §§ ch. 93.1-93.5. section, In the Ordi- the “Definitions” “Findings” im- explains section the “[pregnan- between a distinguishes nance Ordinance, stating petus for that “[i]n the cy services center” and an LSPC. Id. clinics that years, recent seek counsel § cen- 93.3(f)—(g). “[p]regnancy A services against clients abortion”—often referred to (“CPCs”)— facility, or ter” is defined as “a licenced pregnancy as crisis centers primary purpose otherwise ... the throughout “have common Califor- become 93.2(5). who provide § nia.” some which is to services to women Although Id. CPCs offered, (1) as adver- impliedly pressly or that either may pregnant, are or tised. ultrasounds, so- obstetric offers obstetric pregnant care prenatal added). or

nograms (emphasis Id. of a (2) appearance women, has the or in the “Enforce- Finally, as set forth LSPC, 93.3(g). § An facility.” Id. medical section, Attorney may City “[t]he ment” hand, pregnancy “a services the other through a civil ac- enforce” (g), that center, in subsection defined 93.5(a). action, filing an § Before tion. Id. refer- provide or directly provide does not however, Attorney provide City must (1) following services: rals to clients for of the viola- written notice the LSPC with (2) contracep- abortions; emergency or ten that the LSPC has tion and indicate below, 93.3(f). explained § As tion.” Id. false, to cure the mislead- days “in which forth in advertising set on false prohibition “If advertising.” Id. deceptive ing, or Id. to LSPCs. only applies the Ordinance to the written responded has not [LSPC] § 93.4. (10) days, or refuses within ten notice false, deceptive or misleading, cure the of the Ordinance section The “Violation” City period,” within provides: against the LSPC Attorney may file suit [LSPC], (a) any It is 93.5(a)-(b). § Fur- for relief. Id. injunctive unlawful indirectly 'perform directly or intent that, ther, “[u]pon provides (professional pregnancy-related finding by [an LSPC] a court otherwise), or to make or disseminate or ..., City shall 93.4 has violated Section before be made or disseminated cause to penalties civil to recover be entitled or City, or to make public responsible for the every party each and dis- to be made or or cause ($50) disseminate fifty than dollars of not less violation pub- before the from the seminated five hundred dollars and not more than other any newspaper or anywhere, 93.5(c). lic ($500) per violation.” Id. advertising device any or publication, History 4. Procedural what- manner or means any

or in Internet, any ever, including over the 16, 2011, First Resort On November services, statement, concerning those in the United brought against suit otherwise, concerning or or professional the Northern Court for States District matter of fact con- any circumstance or California, alleging freedom District proposed performance nected with the protection, void expression, equal thereof, is untrue which disposition or preemption and state law vagueness, by statement or misleading, whether all City moved to dismiss claims. The omission, knows or the [LSPC] expression except the freedom claims care exercise of reasonable which motion court denied the claim. The district misleading. know to be untrue should grant- claim and equal protection as to to amend as to the motion with leave ed [LSPC], (b) any with It is unlawful for vagueness preemption for the void indirectly perform to directly or intent claims. (professional pregnancy-related First Amend- Resort then filed its otherwise), or First make or disseminate to (“FAC”) 11, on October Complaint any ed made or disseminated cause to be so origi- 2012, from the re-alleging all claims in identified subsection such statement vague- the void for (a) complaint except nal plan of a or scheme with part 2013, 11, the district claim. On March ex- ness the services perform intent not City’s denied the new motion to court dis- DISCUSSION preemption miss the claim. After the close Facially 1. The Is Ordinance Valid. discovery, of First Resort and the “An may ordinance be facially un summary judgment. filed cross-motions for constitutional in of ways: one two ‘either [ ] Granting summary judgment in favor of it every is unconstitutional conceivable City, the district construed court First application, or to prohibit [ ] seeks such Resort’s freedom of claim as a fa- speech a broad range protected conduct that it challenge cial held Ordinance ” is unconstitutionally overbroad.’ Foti v. only regulates unprotected false and mis- Park, 629, (9th Menlo 146 F.3d leading speech commercial and does not Cir. (quoting Members City Coun “in every violate First Amendment Taxpayers Vincent, cil v. 789, 466 U.S. Resort, application.” conceivable Inc. 796, 104 (1984)). S.Ct. 80 L.Ed.2d 772 (N.D. Herrera, F.Supp.3d First Resort appears challenge the Or 2015) (citation omitted). Cal. The district grounds. dinance on both We conclude the court further held that “determination facially Ordinance is valid regu because it Ordinance does violate the only lates unprotected false or misleading First Amendment forecloses First Resort’s speech commercial and is not unconstitu Clause,” Equal claim under the Protection tionally vague. because enforcement the Ordi- conflict nance “does not interfere Only Regulates a. The Ordinance an enforcement under Section action” Unprotected Speech. Commercial the California Business and Pro- type of speech subject Because the Code, fessions the Ordinance is not regulation by the Ordinance is a thresh Id. at preempted state law. issue, old we first must determine whether appealed, First Resort timely arguing regulates only false or mis that the Ordinance is an invalid content- leading speech. question commercial This regulation protected speech, based is lies at the dispute, the heart of because vagueness, impermissibly engages void while generally commercial sub discrimination, viewpoint violates the ject to scrutiny, intermediate the Constitu Equal Protection Clause Fourteenth protection tion affords no to false or mis Amendment, and is state preempted leading speech. commercial Cent. Hudson law. Gas & Elec. Pub. Corp. v. Serv. Comm’n of N.Y., 557, 563, STANDARD OF REVIEW 447 U.S. 100 S.Ct. (“[TJhere (1980) L.Ed.2d can be no We novo the review de district objection suppression constitutional to the granting court’s of a motion to dismiss. messages of commercial that do not accu Coal. Action v. Defend Affirmative rately inform about lawful public activ 2012). Brown, 1128, 1133 674 F.3d ity. may government ban forms of also review de the district We novo court’s likely to communication more deceive the summary grant judgment, or denial of it....”) (internal public than to inform evidence, “determine, viewing omitted). argues citations most light nonmoving par favorable to the regulates the Ordinance all advertising, ty, any genuine whether there are issues advertising, false or of material fact and whether the district subject and that correctly applied court the relevant sub Cruises, heightened regulates because it scrutiny law.” Princess stantive Wallis v. (9th Inc., 2002). 827, only speech. 306 F.3d disagree. 832 Cir. non-commercial We 1272 67, Bolger, mercial 463 U.S. at

First, argument speech,” that the Ordi the 2875, unavail advertising nance all is characteristic need regulates 103 S.Ct. each clearly makes “unlaw ing. The Ordinance for “necessarily present be order ... which is untrue any ful ... statement n.14, commercial,” at id. 67 speech be concerning provid misleading” 103 S.Ct. 2875. 93.4(a). § by ed S.F. Admin. Code LSPCs. first time This is not the we have case plainly regulates Because the Ordinance speech addressed the commercial doctrine misleading speech, the central false providers. in the medical service context of regulated issue is whether the therefore In Pain Academy Manage American of speech be characterized as commer should (9th ment v. F.3d 1099 Joseph, 353 Cir. cial. 2004), paid we held that advertisements for previously explained, As we have medical services constituted commercial speech speech is ‘defined as “[e]ommercial speech Bolger test. Id. at 1106. under propose than commer that does no more a There, non-profit organization a and two of L.A., v. City cial Hunt transaction.’” a challenged doctors provision member (9th 2011) 703, (quoting Cir. 638 F.3d of a law prohibiting California state doc Foods, Inc., v. United United States advertising they tors from were “board 2334, 405, 409, 121 S.Ct. L.Ed.2d U.S. certifying certified” unless the board satis (2001)); see also Bd. Trs. State at requirements. fied certain Id. 1103-05. Fox, 469, 473-74, Univ. v. 492 U.S. of N.Y. Holding regulated only law that the state (1989) 3028, 106 L.Ed.2d 388 S.Ct. Bolger, under speech commercial we ex the commercial transaction test (stating is ... plained: “The statute identifies identifying “the for commercial test object ‘advertising.’ is regulation of its “analysis speech”). speech Our commercial regulated spe relates to a fact-driven, to the due inherent ‘difficul product, Finally, cific medical services. ty drawing bright clearly lines that will advertiser has an economic motive for en in a speech cabin commercial distinct cate ” gaging speech, this kind which is gory.’ Pregnancy Balt. Ctr. Greater patient solicit a Id. at 1106. base.” Concerns, Mayor City Inc. v. & Council of Balt., 264, 284 721 F.3d case, inAs the Ordinance states (quoting City Discovery Cincinnati v. regulate advertising purpose that its is to Network, Inc., 507 U.S. 113 S.Ct. product: related to medi- a similar limited (1993)). 1505, 123 Bolger L.Ed.2d 99 Under cal services offered LSPCs. See S.F. Corp., Youngs Drug Prods. 463 U.S. 93.2(12) (“[T]he Admin. Code has (1983), 77 L.Ed.2d 469 S.Ct. a there exists determined need “[wjhere present question, facts a close regulate misleading advertising false and speech that the ‘strong support’ should offering pregnancy clinics limited ser- speech as commercial characterized 93.4(a). vices.”); Further, 93.3(f)-(g), §§ id. speech found is an advertise where regulated have at one LSPCs least ment, speech particular refers a similar motive for engaging economic product, speaker has an economic patient advertising: false to solicit base. Hunt, (quot motivation.” 638 F.3d at 715 attempts to distinguish 66-67, ing Bolger, 463 U.S. 103 S.Ct. grounds Academy American on the test). Bolger describing How patients case were paying in that ever, combination of all these “[t]he while monetary—and clients provided who provides strong support ... characteristics therefore for doc- economic—motivation [regulated conclusion that Thus, according com- tors to to First properly characterized as advertise. is] Resort, preme have a similar Dakota, LSPCs do not eco- Court of North addressing patients case, motive to solicit because a factually nomic upheld similar prelimi- a they necessarily payments do not receive nary injunction preventing “pro-life” patients from for services rendered. pregnancy clinic engaging in “false deceptive advertising and related ac- We decline to limit American Acade- tivity persons [that] misleads into believing my’s holding circumstances to where that abortions are conducted at the clinic Here, pay for clients services. the solicita- with the deceptively intent of luring those of a non-paying directly tion client base persons to the unwittingly clinic to receive ability to an relates LSPC’s to fundraise anti-abortion propaganda.” Id. at and, turn, in to buy more advertisements. case, As in this pro-life the clinic argued Indeed, as the explained in Joint State- its communications constituted non- ment of Undisputed Facts submitted in speech commercial “because no financial support parties’ cross-motions for charges against assessed persons [were] summary judgment, “First Resort’s em- receiving However, services.” Id. at 180. are ployees encouraged share client sto- the court did not find that the lack of they ries because useful in are fundrais- payment dispositive was ing,” majority of First the “[a] Resort’s speech inquiry. Instead, commercial fundraising communications reference the that, court explained importantly, “[m]ore benefit of its services to clients and often Furthermore, Help include client stories.” Clime’s advertisements are Resort, in placed least the case of First a commercial context successful and are advertising directly employee providing affects com- directed at the of services rather “[mjembers of than pensation, exchange as toward an Resort’s ideas.” Id. at management eligible that, senior team are 181. The court thus concluded “[i]n effect, on criteria receive bonuses based which the Help Clinic’s advertisements may include ... the number of promotional new constitute advertising of ser- clients.” Because utilize advertising LSPCs vices through which patronage of the clinic base, patient to maintain a which in turn solicited, respect and in that constitute income, generate can we conclude that classic examples speech.” of commercial an LSPCs have economic motivation for Id.

advertising their services. Here, Larson, as in the Ordinance is event,

“In any potential commercial directed at advertisements related to the speech hinge solely nature of does not services, provision of medical certain an [LSPCs have] whether economic ideas; exchange did not motive, Bolger preclude as even does not attempt to ban advertisements related to classification of commercial in constitutionally protected pro-life advoca- the absence of the economic speaker’s mo- 93.2(10) (“The cy. § See S.F. Admin. Code Baltimore, tivation.” Greater 721 F.3d at City respects rights of [LSPCs] Thus, regardless 285-86. of whether against counsel abortions and the LSPCs have an economic motivation in does regulate, not intend ... limit or advertising, regulated speech their can still 93.2(12). § curtail such advocacy.”); id. In- classified as commercial. stead, only regulates the or misleading dissemination of false state- reasoning We find the in Fargo Wom pregnancy-related ments Larson, regarding the Org., en’s Health Inc. (N.D.), denied, marketplace services an offers LSPC N.W.2d cert. U.S. 93.4(a). for those 106 S.Ct. 90 L.Ed.2d services. Id. Further- (1986), case, more, persuasive. In that Su- we note that evidence

1274 any claims appeal. But for serve them for itself First Resort views suggests record dismissed, we consider voluntarily in a com- will participating commercially repled.”); if not for claims to be waived marketplace those petitive Space In the Joint Statement services. Ins. Co. v. valuable see also Chubb Custom Facts, Resort admits First Undisputed Inc., n.14 F.3d Sys./Loral, advertising as com- online 2013).1Moreover, that it “views its (9th if even we were Cir. providers of abortion that peting with not waived its First Resort had to conclude viewers,” of online the attention challenge challenge, the vagueness void for by First services offered medical “[t]he fails on the merits. nonetheless testing, ultra- Resort, pregnancy such as if unconstitutionally vague A law is have sounds, nursing consultations opportu “provide a reasonable it does monetary value.” prohibited, conduct is nity to know what adver- regulates the Ordinance Because arbitrary and as to allow is so indefinite in patient a base to attract tising designed discriminatory Human enforcement.” Life marketplace for commercial- competitive a Brumsickle, 624 F.3d Inc. v. Wash. services, hold that the Ordi- we ly valuable (9th 2010) (citation and internal Cir. examples of com- regulates “classic nance omitted); marks see also Roberts quotation Larson, N.W.2d at speech.” mercial 609, 629, 104 Jaycees, 468 U.S. v. U.S. Accordingly, as the Ordinance 181. (1984). First L.Ed.2d 462 S.Ct. misleading commercial false or regulates of these has not satisfied either Resort no speech afforded category of speech—a grounds. Resort’s protection—First constitutional challenge fails. first facial First, may reject vague a we challenge when it is “clear what ness Is Not Void b. The Ordinance prohibits.” a Human ordinance as whole Vagueness. (citation Wash., 624 F.3d at 1021 Life of the Ordi argues Resort also omitted). quotation internal marks it is un facially invalid because nance is Further, may imprecise terms “otherwise However, con constitutionally vague. we in when used vagueness problems avoid this void for First Resort has waived clude provide suffi with terms combination com challenge. original In its vagueness (citation and internal clarity.” Id. cient claim for re First Resort’s second plaint, omitted). arguing In marks quotation was unconstitu was that the Ordinance lief intelligence cannot person ordinary The district court dismissed tionally vague. regulated or speech know what possibly FAC, In its with leave to amend. this claim by the Ordinance’s might punished who be claim, replead did not First Resort fails to provisions, First Resort penalty Lacey v. effectively abandoning it. See in challenges it specific language view Maricopa Cty., 693 F.3d a whole. of the Ordinance as the context banc) (“For 2012) (en claims dismissed noted, court the Ordi- As the district amend, leave to and without prejudice “Findings” section states nance they repled require we will prevent [LSPCs] is to purpose “that its complaint pre- subsequent amended appear First argu- suggestion, it does not unpersuasive sort’s We First Resort’s find vague- a void for by continuing Resort continued to assert claim ment that it "reserved its Although moved for was ness claim. allege _ [in FAC] unconstitutional, summary judgment on all of the other claims vague but and therefore FAC, did not even reference pleaded in the it asserting separate from it as a claim without n itsfree vagueness claim in that motion. Contrary its void for to First Re- claim.” 2. The engaging Applied ‘false and ad- Ordinance Is Valid As regarding nature of to First vertising’ Resort.

counseling provides and services does disagree The parties over whether First Resort, Herrera, First Inc. v. provide.” properly alleged Resort as-applied chal- (N.D. 11-5534,2012 at No. WL *5 lenges as a facial challenge well as to the S.F. Sept. (quoting Cal. Admin. Ordinance, that such First Resort waived (11)-(12) 93.2(6)—(9), § (emphasis Code its as-applied challenges on appeal. With- omitted)). Additionally, the Ordinance out providing explanation, much the dis- In regulated. par- makes clear what is not trict court concluded that First Resort’s ticular, explains the Ordinance challenges below were facial. We dis- limit, “regulate, does not intend to agree, but conclude that First Resort’s as- advocacy, “respects curtail” applied fail. challenges right against to [LSPCs] counsel abor- as-applied “An challenge con tions,” 93.2(10), § Admin. Code S.F. and tends that law is unconstitutional as right that it of individuals to “respects applied litigant’s to particular speech express promote” their beliefs about activity, though even the law bemay capa 93.2(3). Further, abortion, § the Ordi- id. Foti, ble of application valid to others.” that, specifies bringing nance before an F.3d at example, litigant may 635. For “a action, give Attorney “the shall writ- separately argue discriminatory en ten notice violation” and indicate speech forcement of a restriction amounts (10) days that the “has ten LSPC which to viewpoint discrimination in violation of false, to misleading, deceptive cure the the First Amendment.” Id. First Resort 93.5(a). Id. this con- advertising.” Given appears alleged three have least as- text, it is clear what the Ordinance as a (1) applied below: challenges that First prohibits; argument whole First Resorts’s Resort’s speech regarding the nature of its ordinary intelligence that a can- person organization fully protect and services is possibly speech know what the Ordi- ed; (2) that any commercial con regulates unpersuasive. nance tained First within Resort’s advertise “inextricably ments is intertwined” its Furthermore, Resort’s hypo First (3) protected speech; and the Ordi examples concerning thetical what the Or nance because Board disa passed was punished might dinance covers who greed with First Resort’s anti-abortion provisions under its do not render think views. we that First Resort’s While vague. unconstitutionally As the as-applied arguments properly were made “speculation Supreme explained, has Court they below such that should be addressed possible vagueness hypothetical about argument on appeal, each fails on mer situations not before the Court will not its. attack

support a facial on a statute when it Regulate a. The Ordinance Does Not surely majority valid the vast of its Speech. First Protected Resort’s Colorado, intended applications.” Hill 703, 733, 530 U.S. 120 S.Ct. ar as-applied First Resort’s first (2000) (citation L.Ed.2d and internal gument reasoning as its relies on same omitted). Thus, quotation marks even if challenge. Specifically, facial First had not its void for Resort waived asserts that because its advertisements vagueness challenge, challenge speech, would the Or its constitute non-commercial applied still fail on the merits. dinance as First Resort amounts often client stories.” Further- regulation subject to and include content-based above, more, be- Resort’s explained As of First adver- scrutiny. strict success only targets false or employee cause tising directly compen- relates Re- speech, “[mjembers sation, commercial of First Resort’s that the Ordinance sort must demonstrate eligible team are management senior own regulates First Resort’s non-commer- on criteria receive bonuses based which prevail as-applied cial speech to may the number of new include challenge. It cannot. clients.” in the Joint Statement of Un- As stated such, Resort’s] As advertise- “[First Facts, provides “First Resort disputed promotional ments constitute medical such counseling and basic services through patronage of services which tests, early as ultrasounds and pregnancy solicited, respect is in that clinic and con- women as need- prenatal pregnant care to examples of stitute classic commercial ed, These services “have charge.” free Larson, at speech.” 381 N.W.2d 181. Be- value,” and First Resort uses its

monetary only regulates cause the Ordinance to com- print advertisements online aspects of those misleading false adver- pete competitive marketplace in a tisements, only regulates Indeed, First those Resort uses services. as-applied unprotected speech. This chal- em- Google’s like Adwords” and “services lenge therefore fails. keywords for San ploys “hundreds Francisco,” internet such “when an Speech b. First Resort’s Commercial Francisco,’ run for ‘abortion San search is Inextricably Is Not Intertwined appear a link to First Resort’s website can Speech. with Protected Its as a above the search paid advertisement that, argues also First Resort views “First Resort online [this] results.” if even its constitutes commer competing with that of abor- advertising as speech, inextricably cial is in speech tion for the attention of online providers protected speech tertwined with core such above, Accordingly, explained viewers.” subject that the Ordinance strict scru subject First Resort’s advertisements tiny. true that “[c]ommereial While it is constitute Ordinance commercial not retain its commercial speech does speech they placed “are in a com- because inextricably character it inter when are at the mercial context and directed fully protected twined otherwise rather providing of services than toward [,] speech components where the two Larson, an exchange of ideas.” 381 N.W.2d speech easily separated, they can be are at 181. Hunt, inextricably intertwined.” 638 Resort also has a clear economic First (internal quotation F.3d at citation and produce motivation to successful advertise- omitted). Here, marks First com Resort’s free, provide To its ments. services concerning speech (speech mercial the lim engages fundraising efforts provides) ited medical services would furthered, at least part, which are easily fully have been separated ability to First Resort’s attract new truth protected speech (speech concerning Indeed, employees “First Resort’s clients. pregnancy) ful about on its information encouraged are to share client stories be- website. they cause useful in .Not fundraising.” are in its City explained August As the then, First surprisingly, majority “[a] Resort, 2011 letter to First clinic’s fundraising communications ref- Resort’s “detailed information of its to clients website included erence benefit 2218, 2230, procedures about abortion offered out- S.Ct. 192 L.Ed.2d 236 (2015) patient “implie[d] medical clinics” (quoting Rosenberger v. Rector & page its ‘Abortion Procedures’ of Va., 819, 829, Visitors Univ. 515 U.S. perform[ed] pregnancy Resort tests and (1995)); S.Ct. 132 L.Ed.2d 700 to offering ultrasounds as a abor- prelude Serv., see also Moss v. U.S. Secret tion as an outpatient procedure, .or refer- F.3d (“[V]iewpoint ring provider performs clients to a who discrimination when govern occurs Resort, abortions.” As to First applied the ment prohibits speech by particular speak regulate would mis- ers, thereby particular suppressing view information, leading aspects of this which (citation subject.”) about a and internal conceals from the the fact public that First omitted). quotation marks Viewpoint dis “ Resort neither performed abortions nor crimination is a blatant’ ‘egre ‘more providers. referred clients to abortion gious discrimination,’” form of content This commercial is Reed, 135 (quoting S.Ct. at 2230 Rosenber easily separated protected, from other ger, 2510), U.S. at 115 S.Ct. non-misleading portions First Resort’s regulations that discriminate on this basis website, regarding such as information subject are scrutiny, to strict Turner certain pregnancy-related issues. The web- FCC, Sys. 622, 658, Broad. Inc. v. 512 U.S. stated, example: you site “If have (1994). 114 S.Ct. 129 L.Ed.2d 497 you may missed at least period, one be We conclude the Ordinance does not pregnant.... only way sure to know particular discriminate based on the opin- is having pregnancy pelvic a test or ion, viewpoint, ideology or of First Resort exam.”; a technique “Ultrasound is or other district LSPCs. As the court ex- uses project picture sound waves to of an plained, whether applies the Ordinance de- embryo or in womb.” According- fetus offered, on pends the services not on the ly, because the fully pro- commercial and particular espoused views held portions speech tected of First Resort’s Indeed, clinic. applies the Ordinance re- separable, subject are is the Ordinance not what, gardless any, objections if heightened scrutiny. may family-plan- LSPCs have to certain ning Contrary c. The Not services. First Resort’s Ordinance Does Discrimi- Viewpoint. assertion, may nate Based on an LSPC choose not to offer abortions or abortion referrals for Finally, Resort contends nothing reasons that have to do with their that the engages impermissi Ordinance abortion, views on such financial or viewpoint ble by regulating discrimination logistical Balt., reasons. See Greater exempting providers LSPCs and abortion (holding F.3d an ordinance disapproves because regulating engage LSPCs did not view- LSPCs’ views. anti-abortion While First explaining discrimination point Resort clear does not make whether this may “there be no ‘moral or [LSPCs] viewpoint challenge discrimination is as- facial, religious qualms regarding abortion and applied argument regard fails birth-control,’ challenge categorized. provid- less of how the from who refrain ing or or birth referring abortion control regulation engages A in view reasons”). point when it regulates discrimination Moreover, to First contrary Resort’s specific motivating “based on ‘the ” suggestion, regulates ideology or the Ordinance perspective speaker.’ — Gilbert, -, they engage Reed v. Town LSPCs because false or U.S. of their Does Not Violate irrespective 3. The Ordinance misleading speech, pro- Equal Protection Clause. is aimed at The Ordinance viewpoints. false or mislead- from the tecting women Next, First Resort contends pregnancy- certain ing advertisements Equal Protection violates actually do not appear to but centers that be Fourteenth Amendment of the Clause Thus, al- services. offer abortion-related impermissibly speech and cause it burdens only applies to the though the Ordinance on the identi a classification based creates this present providers service specific disagree. We ty speaker. health, not we do to women’s grave threat above, the Ordinance As set forth discriminates that the Ordinance conclude only unprotected commercial regulates views on abortion. on the LSPCs’ based Thus, does because the Ordinance speech. merely seeks to Indeed, the Ordinance the funda unconstitutionally burden not harming women LSPCs from prevent the Ordinance right speech, to free mental misleading speech about false or through rational basis review. See subject those way in no restricts their services Monica, F.3d Santa Rubin v. their views about expressing entities 2002) (“[R]ational ba public or their clients. to the abortion unless the restric appropriate review is sis may true that differently, Put unconstitutionally a funda burdens tion misleading ad- in false or engage LSPCs here, right to free right, mental because vertising concerning their services that the re we conclude speech. Because However, views. they hold anti-abortion unconstitutionally burden strictions do regulate LSPCs Ordinance does we find that right speech, of free Rubin’s In- any anti-abortion views. such based Protec they Equal neither do violate his enti- stead, regulates these City Las Nev. v. right.”); tion ACLU the threat to women’s ties because of (9th 2006) 784, Cir. Vegas, 466 F.3d 798 misleading by their false or posed health (“If right First Amendment there no advertising. ra issue, only proffer a City at need A law regulation.”). that for the argues First Resort tional basis To the extent as it long review “so regula rational basis viewpoint-based is a survives legitimate a rational relation to some City that the bears grounds on the tion of Eden, v. 379 motive, Tucson Woman’s Clinic argument also end.” had an illicit (citation (9th 2004) 531, 543 Cir. could estab F.3d Resort] if [First fails. “Even omitted). marks quotation illicit motive in internal City had an lish that the Ordinance], not that would adopting [the misleading ad- By regulating false Supreme dispositive” “[t]he be because services, the concerning vertising LSPCs’ it unequivocally that ‘will has held Court directly legiti- furthers various Ordinance constitutional not strike down an otherwise ends, including prevent- government mate illicit alleged of an statute on the basis protecting wom- ing deception, consumer ” Menotti v. Se legislative motive.’ health, advancing reproductive en’s attle, 1113, 1130 n.29 409 F.3d goals. See S.F. Admin. City’s fiscal O’Brien, v. States (quoting United (11)-(12). Further, 93.2(8)—(9), § Code 383, 1673, 367, 20 88 S.Ct. 391 U.S. reasons for dis- sets out valid Ordinance (1968)). L.Ed.2d 672 and full-ser- tinguishing between LSPCs In the Ordi- reasons, providers. particular, hold that vice foregoing For the we “false and states that based nance the Ordinance does discriminate that do not offer advertising by clinics viewpoint.

1279 emergency refer clients for abortion or scrutiny—applies. strict Tucson Cf. contraception special Clinic, concern 379 (holding Woman’s F.3d at 547 City” a “[w]hen because woman is misled class). suspect abortion providers are not a into a clinic believing that offers services Because the rationally Ordinance is re- offer, it in fact does not she loses legitimate government interests, lated to time crucial to decision whether rational survives basis Accordingly, review. “may terminate a pregnancy” and also reject we protection Resort’s equal pro- lose the to choose a option particular challenge. cedure, or to at pregnancy terminate 93.2(9). § all.” Id. As the asserts Preempted by 4. The Ordinance is Not brief, a clinic a full “[w]here offers California Business and Professions services, range of the consumer harms of § Code misleading advertising may false and re- Finally, argues main, ability but the threat to a woman’s duplicative the Ordinance is of California’s to access time-sensitive and constitutional- law, false Cal. Bus. & Prof. ly protected care medical does not.” (“§ FAL”), § Code 17500 17500” or “the Moreover, Supreme Court made has preempted by therefore state law. Al legislative body may clear that a choose though, general matter, a implement regulatory different schemes both regulate false and mis offending for different entities without leading advertising, First has Resort failed Equal Protection Clause. See Williamson duplication show that preemption should Inc., 483, Optical of Okla., Lee 348 U.S. apply here invalidate the Ordinance. See (1955) 461, 99 L.Ed. S.Ct. Big Cty. Creek Lumber Co. v. Santa (“Evils may same field of differ Cruz, Cal.Rptr.3d Cal.4th requiring and proportions ent dimensions (2006) (“The party P.3d claim may different remedies.... Or the reform ing general preempts state law a local time, take a itself to step addressing one has the demonstrating ordinance burden of phase problem which seems preemption.”). mind. legislative most acute to the legislature select may phase one one Whether California state law there, remedy field and apply neglecting by a local preempts governed law is Article others.”) (internal omitted); the citations XI, Constitution, 7 of section the California Psychoan Nat’l Advancement Ass’n for of city may or county which states “[a] alysis Psychology, v. Cal. Bd. 228 F.3d of local, enforce all make and within its limits 2000) (“The 1043, 1053(9th question Cir. is sanitary, police, and other ordinances and rational Califor whether it was for the regulations general not in conflict implement nia to li Legislature different Const., XI, (emphasis § 7 laws.” Cal. art. censing psychologists, and for schemes added). a clear indication of “[A]bsent family social It is workers and counselors. Legislature,” intent from preemptive not the Legislature prog irrational for presume courts that a local California law or step, profession, ress one one at a in an of traditional local concern “is area time.”). by preempted Big not state statute.” Creek equal protection challenge First Resort’s Co., 21, 136 Cal.Rptr.3d 45 P.3d at Lumber sepa- also extent fails to the (emphasis original). 827 rately argues that Ordinance burdens recognized, this suspect a Because not a As Court has class. LSPCs are suspect class, only Supreme rational basis review— Court has held “[t]he California

1280 distinguishable they Law is ‘in conflict or as do indicate a that State with’ if the invalidated on the ‘dupli local law local law civil ordinance should be preempts contradicts, See, cates, fully or enters area of alone. duplication preemption an basis law, expressly Sequoia Cty. v. occupied general e.g., either Park Assocs. Sono of ” ma, 1270, 1292-1301, implication.’ or Fireman’s 176 by legislative Cal.App.4th 98 (2009) Lodi, Cal.Rptr.3d (holding Ins. Co. v. 302 F.3d local civil Fund 669 of (9th 928, (quoting but not preempted relying 941 Cir. Sherwin- ordinance was L.A., 893, solely v. 4 Cal.4th on fact that the ordinance was Williams Co. of 215, statute); 534, duplicative 16 r.2d 844 P.2d 536 the state Korean Cal.Rpt (1993)). legislation ‘duplicative’ Legal Advocacy “Local of Am. Found. v. City L.A., 376, 390-93, it is there 28 general Cal.App.4th law when coextensive 23 Cal. Sherwin-Williams, (1994) 16 Cal.Rptr.2d Rptr.2d (concluding that civil with.” 530 215, preempted P.2d at 537. ordinance on duplica 844 was grounds); Myers tion or S.D. cf. noted, previously we have As 1174, City Cty. of S.F., & 336 F.3d 1177-78 largely have confined “California courts 2003) (same). While we need not duplication prong preemp state duplication preemption may decide that penal ordinances.” tion test Fireman’s ordinance, the apply never to a civil fact Fund, at 956. 302 F.3d This is because that the here is civilrather Ordinance than and a criminal when a local ordinance state penal weighs against invalidating based “a under the duplicative, law are conviction duplication preemption. operate prose ordinance will to bar [local] Moreover, are not convinced that the we law for under state the same of cution FAL, as the duplicates laws (quoting Super Cohen v. fense.” Id. Bd. of proscribe are not coextensive and do not S.F., City Cty.& 40 visors Cal.3d Shows, “precisely same acts.” Great W. 467, 840, 277, Cal.Rptr. P.2d L.A., v. Cty. Inc. 27 Cal.4th (1985)); Portnoy, n.12 accord In re (2002) 120, 127-28 Cal.Rpt (1942) (“Insofar r.2d P.3d Cal.2d 131 P.2d (citation quotation internal marks purports] as to prohibit acts [ordinance omitted). Ordinance, First, which criminal already are made which LSPCs, Admin. applies S.F. Code Code, that they Penal it is clear exceed the 93.4, FAL, § scope than the narrower proper supplementary regulation limits firm, applies “any person, corpo which must be invalid because in conflict association, any ration or employee they duplicate.”). with the statutes which thereof,” Prof. Cal. Bus. & Code Here, the Ordinance is civil and because The FAL false applies also statements provisions penal- no criminal contains concerning sale of disposal real ties, double-jeopardy there is no to a bar personal as the property, per well prosecution criminal for the same state professional formance and and sale of non the advertising pro- Ordinance false services, professional the while Ordinance hibits, has and First Resort failed to show only applies to the performance preg enforcing the Ordinance inter- would nancy-related services. Id. Still, enforcing state fere with law. Second, argues that California courts have First Resort has failed to meet Resort preemption the FAL applied duplication to both civil burden to show that covers all However, proscribed by ordinances. as the dis- acts the Ordinance. For in- penal and stance, recognized, prohibits court the First Re- the Ordinance dissemi- trict cases nating misleading by in of this are or support argument sort cites untrue statements sum, In by statement or omis- apply duplication LSPCs “whether we decline to sion,” 93.4(a), § Admin. S.F. Code while preemption to invalidate the Ordinance be- the FAL not the text of does mention cause its enforcement does raise dou- omissions, § Bus. & Prof. Code 17500. Cal. ble-jeopardy concerns and First Resort Similarly, regulates the Ordinance services has not duplicates demonstrated that it offered,” impliedly S.F. Ad- “expressly or state law. 93.4(b), § FAL

min. Code while the does offers, implied not mention Cal. Bus. & CONCLUSION Further, § Prof. 17500. under Code the (a) Ordinance, prohibited LSPCs are both reasons, For forgoing we affirm the making misleading from untrue or state- district in court’s decisions favor of the concerning their pregnancy-related ments City. (b) services, making such and from state- perform” ments with the “intent not to AFFIRMED.

those “as S.F. Admin. services advertised.” FAL, hand, § The Code 93.4. on the TASHIMA, Judge, Senior Circuit (a)

prohibits persons making all from un- concurring part part: and dubitante in true or concerning statements (b) services, property making or and I concur in of Judge all Nelson’s fine such statements with “the intent not to opinion, except for Part which I as to sell” or as property services advertised. remain Part 4 majority dubitante. of the Thus, § Prof. Cal. Bus. & Code opinion holds that San Preg- Francisco’s Ordinance differs from the FAL as it nar- nancy Information Disclosure and Protec- rowly advertising false concern- proscribes (the “Ordinance”) tion Ordinance is not services, ing performance irrespec- preempted by California Business and tive of those are whether offered Professions Code California’s for sale. (“FAL”). Yet, advertising false law note that We also analysis opinion engages reach entirely FAL contain different enforce- is, best, sketchy. this conclusion Be- ment A the FAL schemes. violation of is a analysis cause I do not believe that this punishable by misdemeanor offense im- shoulder, weight can bear is asked to months, prisonment up by to six I am unpersuaded that the Ordinance is both, $2,500, up fine of as well as a by question preempted FAL. The punishable civil offense the same fine. preempted whether the §§ Id. 17536. A violation open important the FAL an one. pen- Ordinance cannot result in a criminal gives Because the California law no case alty, only punishable by a up and is fine of question, clear this I answer to would cer- The Ordinance also authorizes the $500. tify question Supreme to the California City Attorney injunctive to apply for relief Court, 8.548, R. than see Cal. Ct. rather harmful tailored to the effects of LSPCs’ answer, guess make an educated at the (a) advertising, paying false including majority here. does disseminating corrective why majority two reasons gives advertising, the same form as the false (b) But, as I preempted. Ordinance is not notice on posting premises the LSPCs’ below, it clear that among demonstrate is far from stating, things, whether abor- the majority’s the answer is the one Cali- tions or abortion referrals are available at Supreme the Admin. 93.5. fornia Court would reach. LSPC. S.F. Code 1282 801, Apply 162, Preemption to v. P.2d 810 Duplication Sargent, 52 Cal.2d 339

Does (1959) (“We in Pipoly that v. Non-Penal Ordinances? recognize n.3 Benson[, 366, P.2d 482 Cal.2d apply dupli- majority to “deeline[s] The (1942), dealing the was Chief Justice ] the Ordi- preemption cation to invalidate the penal a ordinance and that ordinance not its enforcement does nance because we are concerned declares no with which Maj. Op. double-jeopardy raise concerns.” sanction, view penal but we nevertheless not Ostensibly, majority does at 1281. the here.”). language applicable quoted the “may duplication preemption that hold in There is thus no firm basis California at apply to a ordinance.” Id. never civil support majority’s “declin[ing] Nevertheless, law to majority reasons 1280. apply duplication preemption,” simply to that here is “the fact that in- is penal weighs against non-penal than a ordinance involved. civil rather because preemp- it validating duplication based Thus, majority while the “decline[s] relies majority’s Id. The conclusion tion.” Maj. duplication preemption,” Op. at apply Ins. Co. v. heavily on Fireman’s Fund that, in respectfully doing I suggest (9th Lodi, Cir. F.3d so, majority shoe on the puts 2002). majority But the most that the can foot. The we should wrong question that “Cali- out of Fireman’s Fund is tease asking is whether there is “clear authori- du- largely have confined the fornia courts duplication does ty” preemption that prong preemption of the state plication (not apply “largely” apply) does not Maj. at penal Op. test to ordinances.” a ordinance. There is not. to civil Fund, Fireman’s F.3d at (citing Advertising Apply the FAL Does added).1 Nothing Fireman’s (emphasis by Services Offered LSPCs? duplication from applying Fund bars us majority opinion great on at goes The to the of the instant case. preemption facts speech en- length to demonstrate that the majority convincingly also ex- cannot Resort, regulated by gaged why Myers City County plain S.D. & Ordinance, speech. is commercial But Francisco, 1177-78 San F.3d 2003), opinion implies that First one Part which was decided Fund, not Resort’s is not commercial all year after Fireman’s should There, duplica- “narrowly pro- control. we undertook the because the Ordinance determine, if a preemption analysis concerning tion false scribes non-penal preempted services, California statute performance of irre- [an LSPC’s] Al- non-penal Francisco ordinance. San of whether are of- spective those services though ultimately we concluded majority fered for sale.” Id. at 1281. The laws were not and there- two co-extensive apply the FAL does not implies analysis preempted, fore not our detailed that are for sale.” not “offered majority’s the issue casts doubt on the implication unsupported But this duplication preemption does position analysis FAL. close text of the In non-penal apply to a ordinance. fact, any the FAL it unlawful for makes services,” person perform who intends “to magnified by the Califor- This doubt any to make untrue or state- recog- Supreme long-standing nia Court’s proposed per- “connected applies ment with the duplication preemption nition that civil, non-penal Chavez of that service. Cal. Bus. & ordinances. See formance” addition, course, Fireman’s Fund is Court itself. In Supreme expression not an of the California

1283 FAL Prof. Code 17500. The contains no majority What the does not tell isus requirement those explicit that services be that the in law at issue Larson was “North Thus, “offered for sale.”2 the majority statute, Id. Dakota’s advertising false Chapter does tell us the source of its 51-12 implica- N.D.C.C.” 381 N.W.2d at 182. That that the FAL a requires substantially tion sales transac- statute is similar to Califor- tion. nia’s FAL and preliminary injunction in issued was case issued under the Confusing the issue even further is the North Dakota advertising false statute. in majority’s reliance the opinion earlier on Thus, by necessary implication, the North Fargo Org., Women’s Health Inc. v. Lar Dakota Supreme held Court that the false son, (N.D. 1986) (“Lar 381 N.W.2d 176 advertising applied Help statute to the son”), which “upheld preliminary injunc a Clinic’s even advertising, though no sale preventing ‘pro-life’pregnancy tion clinic was involved.3It thus seems entirely plau- engaging deceptive in and ‘false ad FAL, sible that the California is which vertising persons misleads into [that] similarly-worded to the North Dakota stat- believing that are abortions conducted at ute, could also be construed to cover the clinic with of deceptively the intent type of in advertising which First Resort luring persons those to the clinic to unwit ” and engage. Certainly, LSPCs there tingly receive propaganda.’ anti-abortion authority holding no the contrary. Maj. Op. Larson, at (quoting 179). Further, at majority N.W.2d citing any further supporting without Supreme observes that the North Dakota authority, majority implies “did pay regulation Court not find that the lack of advertising of false is a matter (“Cali- dispositive Maj. ment of “local Op. was to the concern.” at 1279 speech inquiry.” commercial Id. at fornia presume 1273. It courts that a in local law on to goes Help observe that “the an area of Clinic’s traditional local concern ‘is not ” in placed preempted by Big advertisements are a commercial statute.’ (quoting state Cruz, context and are at providing Cty. directed Creek Lumber v.Co. Santa of services rather an Cal.Rptr.3d than toward ex 38. Cal.4th (2006))). change First, (quoting ideas.” Id. at 1273 Lar P.3d Big Creek son, 181). Thus, majori N.W.2d at Lumber zoning regulation involved a local that, ty approvingly Larson quotes speak thus does not to preemption “[i]n effect, Help Clinic’s advertisements under the FAL. In the area of false adver- promotional advertising tising, constitute ser albeit the context of federal pre- through patronage emption, Supreme vices which of the clinic the California Court has solicited, respect protection constitute stated that “consumer laws such examples speech.” advertising classic of commercial as the ... false law ... are Larson, at 1273 (quoting police Id. 381 N.W.2d at within the historic pow- states’ 181). Cases, ers....” Farm Salmon Raised separate independent There is a advertising applied 2. clause the false statute to the the end of at the FALwhich makes it unlawful any opinion case and that on the merits any misleading part make statement "as advisory. would be Id. 182-83. It cannot be plan or scheme with the intent not to sell however, gainsaid, preliminary injunc- that a price property or services” at advertised. tion the North was issued under Dakota false Id. This is the mention of the word injunction statute was any "sale” of its variants the FAL. appeal by affirmed North Dakota Su- preme Court. Supreme is true It that the North Dakota deciding Court said that it was not whether 1284 112, of 1077, making misleading 175 P.3d omissions Cal.Rptr.3d 72 hibit

Cal.4th added). (2008) 1170, We (emphasis patently 1176 law and is ignores California case pro- likewise stated that “consumer have untrue. traditionally have been

tection laws Question to Certify This Should We Chae v. law enforcement hands.” state Supreme Court. the California (9th 936, Corp., 593 944 Cir. F.3d SLM if is is there omitted). Certification warranted 2010) added) (citations (emphasis controlling precedent and the Califor- no Moreover, en- FAL was statewide could de- Supreme nia Court’s decision It has years 75 in 1941. ago, acted over pend- termine the outcome of a matter since, minor only in effect ever been only appeal in our court. ing This amendments, few, chal- any, and with if criteria, an presents but also meets both recently- lenges from local ordinances. significant public importance. issue of Ordinance, course, no such has enacted lineage. Eddie, Media, Inc., Inc. v. Flo & Pandora (9th 950, (citing F.3d 954 Cir. 851

Finally, majority also asserts 8.548(a)). R. Ct. Cal. First Resort has failed to meet its bur- acts to show that FAL covers all den preemption applies to the Ordi- Whether in- by For proscribed the Ordinance. does, outcome nance is determinative—if stance, the dissemi- prohibits And, must be struck down. nating untrue or statements above, far as I have shown the answer is by by LSPCs “whether statement directly certain—there is no control- omission,” of the FAL while the text Moreover, is ling precedent. question does not mention omissions. important one in a broader sense. an (internal at citations Maj. Op. 1280-81 the FAL Whether covers omitted). But this overlooks simplistic view at the kind issue here will dictate under the body the substantial of case law case, this the outcome of but also whether clear FAL. California courts have made throughout Cali- other cities counties Advertising that: Law “Under False copycat Or fornia can the Ordinance. perfectly couched ‘[a] true statement the FAL such com- governs whether itself likely a manner to mis in such that it is This interest speech. public mercial broad consumer, by lead or deceive the such as question particularly this suit- makes one to disclose other relevant failure informa able for certification. ” actionable.’ Advocates tion is Consumer True, unnecessary when certification is Corp., Echostar 113 Cal. v. Satellite “is the state’s law rather well-defined.” (2003) 1351, 22, 8 30 App.4th Cal.Rptr.3d Seeds, Kauai, Inc. 842 Syngenta Cty. added); (emphasis Day see also v. AT&T (9th 2016). 669, 681 Cir. On the other F.3d 325, Corp., Cal.App.4th Cal.Rptr.2d hand, re certify they we “because issues (1998) (“A perfectly true statement interpretation the state quire [law likely in a to mis couched manner that is beyond that in state or federal found issue] consumer, deceive such as lead or City San Die cases.” Barnes-W'allace v. to disclose relevant failure informa 2010). I go, 607 F.3d (em tion, actionable the [FAL].” under seriously it cannot be contend submit that added)); phasis v. Am. Honda Paduano question that the answer to the here Co., ed Cal.App.4th Motor 88 Cal. (2009) (same) contrary, On whether “well-defined.” (quoting Rptr.3d seen, applies and ousts the Ordi majori preemption As can Day). plainly be pro- requires interpretation an ty’s assertion that the FAL does not nance “beyond FAL that found in state feder- public, do the

al cases.” California We litigants,

well as a disservice refus- certify controlling question this

ing to provide that can body one definitive Supreme

answer: the California Court. I remain on the

Because dubitante state issue, I preemption respectfully sug-

law

gest certify question that we should preempted by

whether the Ordinance is Supreme

the FAL to California Court. America,

UNITED STATES

Plaintiff-Appellee,

v. CALVILLO-PALACIOS,

Pablo

Defendant-Appellant. America,

United States of

Plaintiff-Appellee, Calvillo-Palacios, Defendant-

Pablo

Appellant. 16-10039,

No. No. 16-10077 Appeals, States

United Court of

Ninth Circuit. * May

Submitted

Pasadena, California

Filed June * 34(a)(2). panel unanimously App. this case is See Fed. R. P. concludes argument. decision oral suitable for without

Case Details

Case Name: First Resort, Inc. v. Dennis Herrera

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 27, 2017

Citation: 860 F.3d 1263

Docket Number: 15-15434

Court Abbreviation: 9th Cir.