Vivid Appeals Denial of TRO With 9th Circuit

LOS ANGELES — Vivid Entertainment yesterday filed an appeal over U.S. District Judge Dean Pregerson's denial of a temporary restraining order in the studio's suit against enforcement of Measure B, which requires the use of condoms in the production of adult movies in Los Angeles County.

Vivid, along with co-plaintiffs Kayden Kross and Logan Pierce, filed their appeal with the 9th U.S. Circuit Court of Appeals, presenting three questions for an appeals court panel to weigh:

• Whether the district court erred by substantially editing definitions and substantive provisions to preserve portions of  Measure B, which had been passed as a ballot initiative to target adult films, after the court preliminarily enjoined most of the ordinance as a prior restraint?
• Whether the district court erred in refusing to preliminarily enjoin Measure B in full based on evidence submitted by the AIDS Healthcare Foundation (named as Intervenors in the suit) "who lack Article III standing but were allowed to remain as parties below even after the U.S. Supreme Court’s decision in Hollingsworth vs. Perry?"
• Whether the district court erred in refusing to preliminarily restrain Measure B in full after finding that the adult film productions at issue are protected by the First Amendment and that Measure B imposes a prior restraint?

Vivid attorneys said in court documents that Pregerson erred by failing to preliminarily enjoin Measure B in its entirety.

"The court held that Measure B regulates activity protected by the First Amendment and that appellants are likely to succeed on claims that it imposes a  prior restraint, vests county officials with excessive discretion, creates unconstitutional search authority, and imposes unconstitutional permit fees. Yet it nevertheless declined to enjoin a remaining portion of the law — but only after rewriting both its definitions and intended scope," Vivid attorneys wrote.

"Such judicial lawmaking is not the proper  domain of a district court. These errors were compounded by allowing [the AHF] to become parties to the case, and to remain so even after the [U.S.] Supreme Court overruled circuit authority relied upon, and were exacerbated by reliance on AHF’s arguments to support partial denial of preliminary injunctive relief.

"After finding most of Measure B constitutionally suspect, the district court should have enjoined its operation pending a final ruling on the merits. The irreparable injury that the court found supported enjoining Measure B’s principal provisions will still result from operation of the portions that the court rewrote to preserve. The balance of equities and public interest thus fall in appellants’ favor, and Measure B’s condom-use mandate and remaining permit requirements must be preliminarily enjoined." 

In a separate filing yesterday, Vivid attorneys asked the 9th Circuit to take judicial notice of a letter issued in December by Los Angeles County Public Health Director Jonathan   Fielding directed to adult film producers, as well as a report issued by Fielding's office called "Los Angeles County Five-Year Comprehensive HIV Plan (2013-2017)."

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted.