Judge: Robert B. Broadbelt, Case: 23STCV25569, Date: 2023-12-19 Tentative Ruling

Case Number: 23STCV25569    Hearing Date: December 19, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Plaintiffs Byron Chapman, Jose Madriz, and Christopher Langer

RESPONDING PARTIES:    Defendants Rob Bonta, in his official capacity as Attorney General of California, and Gavin Newsom, in his official capacity as Governor of California

Motion for Preliminary Injunction

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiffs Byron Chapman, Jose Madriz, and Christopher Langer (“Plaintiffs”) filed this action for declaratory and injunctive relief on October 19, 2023, against defendants Rob Bonta, in his official capacity as Attorney General of California, and Gavin Newsom, in his official capacity as Governor of California (“Defendants”).  In their Complaint, Plaintiffs request that the court issue declarations that various high-frequency litigant statutes are unconstitutional and violate the Americans with Disabilities Act.  (Compl., ¶¶ 102, 110, 115, 135, 144, 152, 159, 166, 190; Compl., Prayer, ¶¶ 192-193.)

Plaintiffs now move the court for an order issuing a preliminary injunction to prevent the enforcement of the following statutes on the ground that they violate the California Constitution and the Americans with Disabilities Act: (1) Code of Civil Procedure section 425.50; (2) Code of Civil Procedure section 425.55; (3) Government Code section 70616.5; (4) Civil Code section 55.31, subdivisions (b) and (c); and (5) Civil Code section 55.54, subdivisions (a)(1), (b)(2)(D), and (c)(7) (collectively, the “High-Frequency Litigant Statutes”).

A preliminary injunction may be granted “[w]hen it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do . . . some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.”  (Code Civ. Proc., § 526, subd. (a)(3).)  Code of Civil Procedure section 527, subdivision (a) provides:  “A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.  No preliminary injunction shall be granted without notice to the opposing party.” 

“To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits.”  (White v. Davis (2003) 30 Cal.4th 528, 554.)  “A trial court must weigh two interrelated factors when deciding whether to grant a plaintiff’s motion for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial, and (2) the relative interim harm to the parties from the issuance or nonissuance of the injunction, that is, the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the preliminary injunction is issued. [Citations.]”  (SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.)  The burden is on the party seeking injunctive relief to show all the elements necessary to support the issuance of a preliminary injunction.  (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)  

1.     Likelihood of Success on the Merits

Plaintiffs contend that there is a likelihood that they will prevail on the merits at trial because the High-Frequency Litigant Statutes (1) restrict the right to petition since (i) they are prior restraint laws, (ii) they restrict access to the courts, (iii) they are unlawful content-based speech restrictions, and (iv) they are overbroad; (2) are retaliatory violations of the First Amendment and the Americans with Disabilities Act; (3) violate due process by imposing filing and procedural restrictions on Plaintiffs; (4) violate Plaintiffs’ right to equal protection of the law; (5) violate Plaintiffs’ constitutional right to privacy; and (6) are preempted by the Americans with Disabilities Act.

The court finds that Plaintiffs have not met their burden to show that they are likely to prevail on the merits of their claims at trial.  (SB Liberty, LLC, supra, 217 Cal.App.4th at p. 280.)

First, the court finds that Plaintiffs have not shown that they are likely to prevail on their claim that the High-Frequency Litigant Statutes constitute prior restraints on speech.  (Compl., pp. 21:16-23:13 [first claim for relief for violation of the right to petition].) 

“The use of prior restraint is particularly disfavored.  ‘A prior restraint is an administrative or judicial order that forbids certain speech in advance of the time the communication is to occur.  [Citations.]’”  (People v. Salvador (2022) 83 Cal.App.5th 57, 66.)  The court acknowledges that the High-Frequency Litigant Statutes require a plaintiff alleging a construction-related accessibility claim to allege certain information set forth by statute, disallow requests or demands for money or an offer or agreement to accept money in demand letters (while permitting offers of prelitigation settlement negotiations), and require a payment of a $1,000 filing fee.  (Code Civ. Proc., § 425.50, subd. (a)(4); Civ. Code, § 55.31, subd. (b); Gov. Code, § 70616.5, subds. (a), (b).)  But Plaintiffs have not shown that these “partial restriction[s] on the ability to file suit[s]” alleging construction-related accessibility claims constitute prior restraints.  (Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 60 [finding that the plaintiff had not shown that the partial restriction on the ability to file suit pursuant to the vexatious litigant statutes “has ever been held to be a ‘prior restraint’ requiring a showing of clear and present danger and concomitant procedural safeguards”].)

Second, the court finds that Plaintiffs have not shown that they are likely to prevail on their claim that the High-Frequency Litigant Statutes restrict their access to the court system.  (Compl., ¶¶ 96, 99, 118, 130, 139.)  Plaintiffs have not cited to authority or evidence establishing that the procedural mechanisms set forth by these statutes restrict Plaintiffs’ abilities to file actions in state or federal court.

Third, the court finds that Plaintiffs have not shown that they are likely to prevail on their claim that the High-Frequency Litigant Statutes unlawfully restrict speech based on content.  (Compl., ¶ 30 [the High-Frequency Litigant Statutes “prohibit[] a plaintiff’s speech in the form of banning certain prelitigation demand letters”], 91, 93.)

 “‘ “As a general rule, laws that by their terms distinguish favored speech from disfavored speech . . . are content based.  [Citations.]” ’ [Citations.]  Those that cannot be ‘ “ ‘justified without reference to the content of the regulated speech,’ ” or that were adopted by the government “because of the disagreement with the message [the speech] conveys,” ’ are also considered content-based.”  (Center for Bio Ethical Reform, Inc. v. Irvine Co., LLC (2019) 37 Cal.App.5th 97, 105 [internal citations omitted].)  Content-based restrictions are subject to strict scrutiny and therefore “must be necessary to serve a compelling government interest and narrowly drawn to achieve that end.”  (Ibid.)  Here, Plaintiffs have not met their burden to specify which provisions in the High-Frequency Litigant Statutes constitute content-based prohibitions.  Although the court has acknowledged, as set forth above, that these statutes require plaintiffs asserting construction-related accessibility claims to allege certain facts, pay an additional fee, and bar demands for money, Plaintiffs have not shown that these statutes restrict speech or their right to bring their claims in court.  (Code Civ. Proc., § 425.50, subd. (a)(4); Civ. Code, § 55.31, subd. (b); Gov. Code, § 70616.5, subds. (a), (b).)  These statutes do not bar Plaintiffs from bringing their accessibility claims in court, and instead only impose certain procedural requirements. 

Fourth, the court finds that Plaintiffs have not shown that they are likely to prevail on their claim that the High-Frequency Litigant Statutes are substantially overbroad.  (Compl., pp. 24:14-25:13 [third claim for relief based on overbreadth].)

“‘A statute is facially overbroad if it “may cause others not before the court to refrain from constitutionally protected speech or expression.”’” (In re J.M. (2019) 36 Cal.App.5th 668, 679-680.)  Plaintiffs have not shown that they are likely to establish that the High-Frequency Litigant Statutes are overbroad because they have not shown that the statutes are not narrowly tailored to the compelling state interest of protecting courts from being burdened with lawsuits not directed to correcting accessibility violations.  (Code Civ. Proc., § 425.55, subd. (a)(2) [Legislature’s finding that more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms, and 46 percent of all complaints were filed by a total of 14 parties, and such lawsuits are frequently filed against small businesses on the basis of boilerplate complaints “apparently seeking quick cash settlements rather than correction of the accessibility violation[,]” which “unfairly taints the reputation of other innocent disabled consumers”]; Wolfe v. George (N.D. Cal. 2005) 385 F.Supp.2d 1004, 1013 [finding that California’s vexatious litigant statute is “narrowly tailored to further the compelling interest in having a legal system that is not needlessly disrupted by baseless and frivolous litigation”].)

Fifth, the court finds that Plaintiffs have not shown that they are likely to prevail on their claim that the High-Frequency Litigant Statutes were enacted as retaliation against Plaintiffs for filing construction-related accessibility complaints.  (Compl., pp. 23:19-24:13 [second claim for relief for retaliation].)  Although the Legislature included, in its findings, that (1) 54 percent of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms, and (2) 46 percent of all complaints were filed by 14 parties, Plaintiffs have not cited to any authority or evidence establishing that the High-Frequency Litigation Statutes were enacted in retaliation for Plaintiffs’ filings of such actions.  (Code Civ. Proc., § 425.55, subd. (a)(2).)

Sixth, the court finds that Plaintiffs have not shown that they are likely to prevail on their claim that the High-Frequency Litigant Statutes violate their due process rights.  (Compl., pp. 26:10-30:144 [fifth and sixth claims for relief for violation of due process].)  “[P]rocedural due process requires reasonable notice and opportunity to be heard before the government may deprive a person of a significant property interest . . . .”  (Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt. (2008) 167 Cal.App.5th 1350, 1359.)  Here, Plaintiffs have not cited to any provisions in the High-Frequency Litigant Statutes that deprive them an opportunity to bring their claims in court.

Seventh, the court finds that Plaintiffs have not shown that they are likely to prevail on their claim that the High-Frequency Litigant Statutes violate Plaintiffs’ rights to equal protection of law.  (Compl., pp. 30:17-31:28 [seventh claim for relief for violation of the equal protection clause].) 

“‘In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment . . . [courts] apply different levels of scrutiny to different types of classifications.  At a minimum, statutory classification must be rationally related to a legitimate governmental purpose.”  (People v. Wilkinson (2004) 33 Cal.4th 821, 836.)  Plaintiffs have not met their burden to show that they are likely to prevail on their equal protection clause claim because (1) they have not sufficiently set forth argument establishing the level of scrutiny that the court should apply in evaluating their claim since they have asserted that high-frequency litigants “are not [] considered [a] protected class[;]” (2) they have not shown that they are treated unequally since the High-Frequency Litigant Statutes do not bar them from bringing claims in court; and (3) they have not shown that the State’s interest in addressing the litigation practice which the Legislature found “unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations” is not a compelling state interest to which the High-Frequency Litigant Statues are narrowly tailored.  (Mot., p. 9:14; Code Civ. Proc., § 425.55, subd. (a)(2).)

Eighth, the court finds that Plaintiffs have not shown that they are likely to prevail on their claim that the High-Frequency Litigant Statutes violate their right to privacy.  (Compl., pp. 33:9-34:17 [ninth claim for relief for violation of California right to privacy].)  

A party alleging that the right to privacy has been violated “must demonstrate ‘(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.’”  (Lewis v. Superior Court (2017) 3 Cal.5th 561, 571.)  Plaintiffs contend that the provisions requiring high-frequency litigants to make disclosures in public documents setting forth why the litigant was in the geographic area of the defendant’s business and why the individual desired to access the defendant’s business, including the specific commercial, business, personal, social, leisure, recreational, or other purpose, violates their rights to privacy.  (Code Civ. Proc., § 425.50, subd. (a)(4).)  However, Plaintiffs have not set forth sufficient argument or evidence establishing that disclosure of such information “constitute[s] a serious invasion of privacy” rather than an insignificant or de minimis intrusion on any protected privacy interests that may exist.  (Lewis, supra, 3 Cal.5th at p. 571.)

Finally, the court finds that Plaintiffs have not shown that they are likely to prevail on their claim that the High-Frequency Litigant Statutes are preempted by the Americans with Disabilities Act. 

The construction clause in the Americans with Disabilities Act “disavows any broad preemptive intent, instead permitting states to enact and enforce complementary laws[.]”  (Jankey v. Lee (2012) 55 Cal.4th 1038, 1049; 42 U.S.C. § 12201, subd. (b) [“Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter”].)  Laws that do not afford equal or better protection to individuals with disabilities than the Americans with Disabilities Act are “not shielded from preemption[,]” but the construction clause therein “does not categorically declare that any law providing lesser protection than the [Americans with Disabilities Act] is invalid.”  (Jankey, supra, 55 Cal.4th at p. 1049.)  “[S]uch laws are invalid to the extent standard conflict or obstacle preemption principles would require their displacement.”  (Ibid.)  “Obstacle preemption ‘requires proof Congress had particular purposes and objectives in mind, a demonstration that leaving state law in place would compromise those objectives, and reason to discount the possibility the Congress that enacted the legislation was aware of the background tapestry of state law and content to let that law remain as it was.’”  (Restore Hetch Hetchy v. City and County of San Francisco (2018) 25 Cal.App.5th 865, 877.) 

Plaintiffs contend that the High-Frequency Litigant Statutes conflict with the Americans with Disabilities Act because they impose different procedural requirements (i.e., requiring that the plaintiff allege certain facts and pay an additional filing fee).  However, they have not set forth sufficient authority and argument establishing that (1) California affords less protections to persons with disabilities by imposing these procedural requirements, and (2) the High-Frequency Litigant Statutes “compromise” specific objectives of the Americans with Disabilities Act.  Thus, Plaintiffs have not met their burden to show that they are likely to prevail on their claim that these statutes are invalid on the ground of preemption.

Thus, the court finds that Plaintiffs have not met their burden to show that there is a likelihood that they will prevail on the merits of their claims at trial and therefore have not supported their request for a preliminary injunction.  (SB Liberty, LLC, supra, 217 Cal.App.4th at p. 280 [“the trial court must deny a motion for a preliminary injunction if there is no reasonable likelihood the moving party will prevail on the merits”]; O’Connell, supra, 141 Cal.App.4th at p. 1481 [parties seeking injunctive relief have the burden “to show all elements necessary to support issuance of a preliminary injunction”].)

2.     Relative Harm to the Parties

Even if Plaintiffs had met their burden to show that they would prevail on the merits on all or some of their claims, the court finds that Plaintiffs have not met their burden to show that the balance of harms weighs in favor of issuing a preliminary injunction.

“Typically, the trial court’s evaluation of the relative balance of harms compares the interim harm the plaintiff is likely to sustain if the injunction is denied to the harm the defendant is likely to suffer if the preliminary injunction is issued.”  (Tulare Lake Canal Company v. Stratford Public Utility District (2023) 92 Cal.App.5th 280, 397.)

Plaintiffs contend that they will be harmed if the court does not issue a preliminary injunction because (1) they feel deterred from filing additional lawsuits, and (2) plaintiff Langer has found that it is difficult to file lawsuits with more than one law firm.  (Madriz Decl., ¶ 7 [plaintiff Madriz has filed 10 lawsuits in the past year and, although he has sent “other matters” to counsel, Madriz is “unsure if [he] want[s] to have those cases filed given the high-frequency litigant label attaching to” him]; Langer Decl., ¶¶ 13, 19.) 

The court finds that this evidence is insufficient to show that they will suffer irreparable harm because (1) Plaintiffs have not pointed to any provisions in the High-Frequency Litigant Statutes that bar them from bringing their claims, and (2) although plaintiff Langer stated that he “did not immediately appreciate how” these statutes affected his rights, the High-Frequency Litigant Statutes were enacted in 2012 and 2015, and Plaintiffs have not presented sufficient evidence explaining their delay in addressing the harms caused thereby.  (Code Civ. Proc., § 425.50, subd. (g) [“This section shall become operative on January 1, 2013]; Civ. Code, § 55.31, subd. (a) [“Commencing January 1, 2013,” demand letters alleging construction-related accessibility claims shall state the information set forth by statute]; Sen. Bill No. 1186 (2011-2012 Reg. Sess.); Assem. Bill No. 1521 (2015-2016 Reg. Sess.); O’Connell, supra, 141 Cal.App.4th at p. 1481 [“‘Long delays in assertion of rights can be the basis of denial of mandatory injunctive relief’”].)  Moreover, the public interest of addressing potentially abusive litigation practices outweighs any harm that Plaintiffs may suffer.  (Code Civ. Proc., § 425.55, subds. (a)(1), (a)(2).)  

3.     Conclusion

Based on the evidence and arguments set forth by the parties, the court finds that              (1) Plaintiffs have not met their burden to show that there is a likelihood that they will prevail on the merits on any or all of the claims alleged in their Complaint, and (2) even if they had met their burden to show a likelihood that they will prevail on the merits, they have not met their burden to show that they are likely to suffer irreparable harm if their request for an injunction is denied.  (SB Liberty, LLC, supra, 217 Cal.App.4th at p. 280.)  The court therefore denies Plaintiffs’ motion.

ORDER

The court denies plaintiffs Byron Chapman, Jose Madriz, and Christopher Langer’s motion for preliminary injunction.

The court orders defendants Rob Bonta, in his official capacity as Attorney General of California, and Gavin Newsom, in his official capacity as Governor of California, to give notice of this ruling.

IT IS SO ORDERED.

DATED:  December 19, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court