Crownholm v. Moore ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RYAN CROWNHOLM, et al., No. 2:22-cv-01720-DAD-CKD 12 Plaintiffs, 13 v. ORDER DENYING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION 14 RICHARD B. MOORE, et al., (Doc. No. 12) 15 Defendants. 16 17 18 This matter came before the court on December 6, 2022 for a hearing on a motion for a 19 preliminary injunction filed on October 18, 2022 on behalf of Ryan Crownholm and Crown 20 Capital Adventures, Inc. (“plaintiffs”) seeking declaratory and injunctive relief against Richard B. 21 Moore, Rossana D’Antonio, Michael Hartley, Fel Amistad, Alireza Asgari, Duane Friel, Kathy 22 Jones Irish, Coby King, Elizabeth Mathieson, Paul Novak, Mohammad Qureshi, Frank Ruffino, 23 Wilfredo Sanchez, and Christina Wong (“defendants”), in their official capacities as officers and 24 members of the California Board for Professional Engineers, Land Surveyors, and Geologists (the 25 “Board”). (Doc. No. 12.) Attorney Paul Avelar appeared by video for plaintiffs. Deputy 26 Attorney General Sharon O’Grady appeared by video on behalf of defendants. For the reasons 27 explained below, the court will deny plaintiffs’ motion for a preliminary injunction. 28 ///// 1 BACKGROUND 2 Plaintiff Crown Capital Adventures, Inc., a Delaware corporation registered as a foreign 3 corporation in California, operates the website MySitePlan.com, which creates and sells site plans 4 in nearly all states of the United States, including California. (Doc. No. 12-2 at ¶¶ 5, 49.) 5 Plaintiff Ryan Crownholm is the sole shareholder, director, and officer of Crown Capital 6 Adventures, Inc., as well as the sole owner and operator of MySitePlan.com. (Id. at ¶¶ 4, 6.) Mr. 7 Crownholm is not authorized to practice land surveying in California, as he is neither a licensed 8 surveyor nor a civil engineer with a pre-1982 license. (Id. at ¶ 7); see Cal. Bus. & Prof. Code § 9 6731 (stating that civil engineers who became licensed before January 1, 1982 may also practice 10 land surveying). In California, plaintiffs create site plans using publicly available geographic 11 information system mapping data, satellite imagery, and client-provided information, and then 12 sell them to customers for planning, infrastructure management, general information, and 13 submission to county and municipal building permit departments. (Doc. No. 1 at ¶¶ 2, 123.) 14 The Board is a consumer protection agency within the California Department of 15 Consumer Affairs. (See Doc. No. 13-1 at 42.) The Board regulates the practice of land surveying 16 through administering the California Professional Land Surveyors’ Act (the “Act”), California 17 Business & Professions Code §§ 8700 through 8805. Section 8708 of the Act restricts the 18 practice of land surveying in California to those who have a license or are specifically exempted, 19 and § 8790 grants the Board disciplinary powers to enforce this restriction. California law 20 defines the practice of land surveying to include, among other things, a person who “[l]ocates, 21 relocates, establishes, reestablishes, or retraces the alignment or elevation for any of the fixed 22 works embraced within the practice of civil engineering”; “[l]ocates, relocates, establishes, 23 reestablishes, or retraces any property line or boundary of any parcel of land, right-of-way, 24 easement, or alignment of those lines or boundaries”; “[d]etermines the information shown or to 25 be shown on any map or document prepared or furnished in connection with any one or more of 26 the functions described in [this statute]”; or “[p]rocures or offers to procure land surveying work 27 for themselves or others.” Cal. Bus. & Prof. Code § 8726(1), (3), (7), (9). 28 ///// 1 On December 28, 2021, the Board issued a citation order to plaintiffs for offering and 2 practicing land surveying without legal authorization, in violation of the Act, on the grounds that 3 the site plans that they offered through MySitePlan.com depicted “the location of property lines, 4 fixed works, and the geographical relationship thereto,” falli ng “within the definition of land 5 surveying.” (Doc. Nos. 12-1 at 11, 12; 12-3 at 11.) Plaintiffs’ website includes a disclaimer 6 reading, “THIS IS NOT A LEGAL SURVEY, NOR IS IT INTENDED TO BE OR REPLACE 7 ONE.” (Doc. No. 13-2 at ¶ 9.) However, the website also displays statements such as: 8 “Guaranteed Acceptance,” “Widely accepted by building departments and HO’s for residential 9 permitting purposes,” “OUR SITE PLANS ARE GREAT FOR [¶] Demolition permits. . . . [¶] 10 Conditional Use Permits. . . . [¶] Construction Permits. . . . [¶] Sign Permits. . . . [¶] Residential 11 and Commercial Site Plans. . . .” (Id.) The citation order issued by the Board directed plaintiffs 12 to pay a fine of $1,000 and to “cease and desist from violating” California Business & Professions 13 Code §§ 8792(a) and (i) and 8726(a)(1), (3), and (9). (Doc. Nos. 12-3 at 10; 13 at 12.) California 14 Business & Professions Code § 8792(a) and (i) make it a misdemeanor to “practice[], or offer[] to 15 practice, land surveying in this state” or “manage[] or conduct[] as manager, proprietor, or agent, 16 any place of business from which land surveying work is solicited, performed, or practiced” 17 without legal authorization. 18 Plaintiffs were advised that they could appeal the citation by requesting an informal 19 conference, a hearing before an administrative law judge (“ALJ”), or both. (Doc. No. 13 at 13.) 20 On January 20, 2022, plaintiffs submitted a notice of appeal and requested a hearing before an 21 ALJ. (Id.) Plaintiffs withdrew the notice of appeal on September 22, 2022, less than one week 22 before the requested hearing scheduled for September 27, 2022, and they expressly accepted the 23 terms of the Board’s citation and agreed not to appeal it. (Doc. No. 13-1 at 4–5, 42.) 24 On September 29, 2022, plaintiffs filed a complaint against defendants seeking to declare 25 the Act, and in particular, California Business & Professions Code §§ 8726(a)(1), (7), and (9), 26 and 8792(a) and (i), unconstitutional on its face and as applied to them and to enjoin its 27 enforcement. (Doc. No. 1 at 29.) Plaintiffs assert three causes of action in their complaint. The 28 first claim, brought under 42 U.S.C. § 1983 as an as-applied challenge, asserts that defendants 1 violated the First Amendment of the U.S. Constitution by restraining how plaintiffs create and 2 disseminate non-authoritative site plans to customers “for planning, infrastructure management, 3 general information, and submission to California county and municipal building permit issuing 4 department purposes.” (Id. at 20–22.) Plaintiffs allege that t he way defendants apply the Act is a 5 “content- and speaker-based restriction on the ability to use and generate information.” (Id. at ¶ 6 128.) Plaintiffs’ second claim, brought under 42 U.S.C. § 1983 as a facial challenge, asserts that 7 California Business & Professions Code § 8726 is “unconstitutional on its face because it so 8 vague that there is no way to know that it outlaws picture-drawing and/or it is so overbroad that it 9 criminalizes innumerable wholly-innocuous pictures.” (Id. at 23.) Plaintiffs bring their third 10 cause of action under the Fourteenth Amendment’s Due Process and Equal Protection Clauses. 11 (Id. at 26.) 12 On October 18, 2022, plaintiffs filed the pending motion for a preliminary injunction 13 seeking to enjoin enforcement of the Act. (Doc. No. 12.) On November 1, 2022, defendants filed 14 their brief in opposition to the pending motion, and plaintiffs filed their reply thereto on 15 November 14, 2022. (Doc. Nos. 13, 14.) 16 ANALYSIS 17 A. Abstention 18 1. Younger Abstention 19 Defendants first assert that the court need not consider the merits of the pending motion 20 because the Younger abstention doctrine applies here. (Doc. No. 13 at 14.) In Younger, the U.S. 21 Supreme Court held that “absent extraordinary circumstances, a federal court may not interfere 22 with a pending state criminal prosecution.” Potrero Hills Landfill, Inc. v. County of Solano, 657 23 F.3d 876, 882 (9th Cir. 2011) (citing Younger v. Harris, 401 U.S. 37, 54 (1971)). The Supreme 24 Court has since extended Younger abstention to two additional categories of cases identified in its 25 decision in New Orleans Pub. Service, Inc. v. Council of New Orleans (“NOPSI”), 491 U.S. 350, 26 367–68 (1989): “‘[1] state civil proceedings that are akin to criminal prosecutions, and . . . [2] 27 state civil proceedings that implicate a State’s interest in enforcing the orders and judgments of its 28 courts.’” Herrera v. City of Palmdale, 918 F.3d 1037, 1043 (9th Cir. 2019) (quoting ReadyLink 1 Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014)). Together, these 2 three categories of cases are known as the NOPSI categories. Id. at 1044. 3 “To warrant Younger abstention, a state civil action must fall into one of the NOPSI 4 categories, and must also satisfy a three-part inquiry: the sta te proceeding must be (1) ‘ongoing,’ 5 (2) ‘implicate important state interests,’ and (3) provide ‘an adequate opportunity . . . to raise 6 constitutional challenges.’” Id. (quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar 7 Ass’n, 457 U.S. 423, 432 (1982)). In addition, the Ninth Circuit has “articulated an implied 8 fourth requirement that (4) the federal court action would ‘enjoin the proceeding, or have the 9 practical effect of doing so.’” Potrero Hills Landfill, Inc., 657 F.3d at 882 (quoting 10 AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1148–49 (9th Cir. 2007)). “For Younger to 11 apply, all four requirements must be ‘strictly satisfied.’” Barra v. City of Kerman, No. 1:08-cv- 12 01909-OWW-GSA, 2009 WL 1706451, at *5 (E.D. Cal. June 9, 2009) (citing 13 AmerisourceBergen Corp., 495 F.3d at 1149). 14 At the hearing on the pending motion for a preliminary injunction, defendants argued that 15 the first requirement for abstention under Younger applies here because plaintiffs agreed to the 16 cease-and-desist order and are subject to further proceedings if they were to violate it. However, 17 the court finds that the first requirement of Younger is absent. On September 21, 2022, plaintiffs 18 withdrew their notice of appeal and expressly accepted the terms of the citation, including 19 agreeing not to appeal the Board’s citation. (Doc. No. 13-1 at 4, 42.) Because plaintiffs agreed 20 not to appeal the citation, defendants can point to no ongoing state proceedings. The fact that the 21 Board could take further measures if plaintiffs were to violate the cease-and-desist order does not 22 mean that those civil proceedings are currently ongoing. Thus, abstention under Younger would 23 not appear to be appropriate at this time. 24 2. Pullman Abstention 25 Defendants also argue that the court should abstain from deciding the pending motion for 26 a preliminary injunction under the doctrine explained in Railroad Commission of Texas v. 27 Pullman Co., 312 U.S. 496 (1941), which is known as “Pullman abstention.” (Doc. No. 13 at 28 16.) Abstention under Pullman “is an extraordinary and narrow exception to the duty of a district 1 court to adjudicate a controversy.” Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010) 2 (internal alterations and quotation marks omitted); see also Porter v. Jones, 319 F.3d 483, 492 3 (9th Cir. 2003) (“Pullman abstention should rarely be applied.”). It is appropriate only when all 4 three of the following factors are satisfied: 5 (1) The case touches on a sensitive area of social policy upon which the federal courts ought not enter unless no alternative to its 6 adjudication is open, (2) constitutional adjudication plainly can be avoided if a definite ruling on the state issue would terminate the 7 controversy, and (3) the proper resolution of the possible determinative issue of state law is uncertain. 8 9 Porter, 319 F.3d at 492 (internal alteration and quotation marks omitted). 10 The Ninth Circuit has observed that the first Pullman requirement for abstention “is 11 ‘almost never’ satisfied in First Amendment cases.” Courthouse News Serv. v. Planet, 750 F.3d 12 776, 784 (9th Cir. 2014) (quoting Ripplinger v. Collins, 868 F.2d 1043, 1048 (9th Cir. 1989)); see 13 also Wolfson, 616 F.3d at 1066 (specifically stating that Pullman abstention “is generally 14 inappropriate when First Amendment rights are at stake”) (internal alterations and quotation 15 marks omitted). This is because “there is a risk in First Amendment cases that the delay that 16 results from abstention will itself chill the exercise of the rights that the plaintiffs seek to protect 17 by suit.” Porter, 319 F.3d at 487. Moreover, the Ninth Circuit has stated that “we do not believe 18 that the norm against Pullman abstention in First Amendment cases must be limited to instances 19 in which the plaintiff challenges a statute that directly regulates expression. Government action 20 that does not directly prohibit expressive activity may nonetheless raise profound First 21 Amendment concerns.” Courthouse News, 750 F.3d at 787. 22 Delaying the adjudication of plaintiffs’ First Amendment claims would contravene the 23 First Amendment’s policy of mitigating any chilling influences on the exercise of rights. Indeed, 24 plaintiffs themselves allege that the “application of California’s surveying definition will chill 25 First Amendment rights.” (Doc. No. 12-1 at 29.) Defendants have also failed to explain how 26 addressing plaintiffs’ First Amendment challenge is not within this federal court’s purview or 27 ///// 28 ///// 1 what alternatives plaintiffs would have to remedy the alleged constitutional wrongs. 2 Accordingly, the court concludes that the first factor required for Pullman abstention is not 3 satisfied here, making abstention under Pullman inappropriate. 4 B. Preliminary Injunction 5 The proper legal standard for preliminary injunctive relief requires a party to demonstrate 6 “‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 7 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction 8 is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting 9 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. 10 Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish that 11 irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.’”) 12 (quoting All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). The Ninth 13 Circuit has also held that an “injunction is appropriate when a plaintiff demonstrates . . . that 14 serious questions going to the merits were raised and the balance of hardships tips sharply in the 15 plaintiff’s favor.” All. for Wild Rockies, 632 F.3d at 1134–35 (citation omitted). The party 16 seeking the injunction bears the burden of proof as to each of these elements. Klein v. City of San 17 Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); Caribbean Marine Servs. Co. v. Baldrige, 844 18 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff must do more than merely allege imminent harm 19 sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a 20 prerequisite to preliminary injunctive relief.”). Finally, an injunction is “an extraordinary remedy 21 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 22 Winter, 555 U.S. at 22. 23 1. Likelihood of Success on the Merits 24 The likelihood of success on the merits is the most important Winter factor. See Disney 25 Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017). Plaintiffs bear the burden of 26 demonstrating that they are likely to succeed on the merits of their claims or, at the very least, that 27 “serious questions going to the merits were raised.” All. for Wild Rockies, 632 F.3d at 1131. For 28 the reasons stated below, the court concludes that plaintiffs have neither shown a likelihood of 1 success on the merits nor raised serious questions going to the merits of their First Amendment 2 freedom of speech, void for vagueness, and overbreadth claims.1 3 a. Plaintiffs Have Failed to Show That the Law and Facts Clearly Favor 4 Their Argument That the Act Violates the First Amendment 5 i. Plaintiffs Have Not Clearly Shown That the Act Is Content Based 6 “The First Amendment, applicable to the States through the Fourteenth Amendment, 7 prohibits laws that abridge the freedom of speech.” Nat’l Inst. of Family & Life Advocates v. 8 Becerra (“NIFLA”), ___ U.S. ___, 138 S. Ct. 2361, 2371 (2018). Under the First Amendment, a 9 government cannot “restrict expression because of its message, its ideas, its subject matter, or its 10 content.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (quoting Police Dep’t of Chi. 11 v. Mosley, 408 U.S. 92, 95 (1972)). A law that is content based is generally subject to strict 12 scrutiny. See id. at 164. A law may be content based in two ways: it may be content based “on 13 its face” or alternatively, it may rely on a content-based “purpose and justification.” Id. at 163– 14 64. “A regulation of speech is facially content based under the First Amendment if it ‘target[s] 15 speech based on its communicative content’—that is, if it ‘applies to particular speech because of 16 the topic discussed or the idea or message expressed.’” City of Austin, Texas v. Reagan Nat’l 17 Advert. of Austin, LLC, ___ U.S. ___, 142 S. Ct. 1464, 1471 (2022) (alteration in original) 18 (quoting Reed, 576 U.S. at 163). 19 Plaintiffs argue that the California licensing requirement at issue here is content based on 20 its face because it singles out a particular form of speech: the depiction of “property lines, fixed 21 works, and the geographical relationship thereto.” (Doc. No. 12-1 at 19.) Specifically, they 22 contend that “[i]f Plaintiffs instead created and disseminated drawings depicting virtually 23 anything besides ‘property lines, fixed works, and the geographical relationship thereto,’ . . . the 24 Board would not have applied the surveyor-licensing law to restrict the drawings.” (Doc. No. 12- 25 1 Plaintiffs bring their third cause of action under the Fourteenth Amendment’s Due Process and 26 Equal Protection Clauses. However, neither their motion for a preliminary injunction nor their 27 reply in support of that motion contain any argument to that effect. Accordingly, the court will not address plaintiffs’ third cause of action in addressing their motion for a preliminary 28 injunction. 1 1 at 19.) This argument is both circular and unavailing to plaintiffs. Merely defining the conduct 2 to be regulated, i.e., “locat[ing] property lines,” and “establish[ing] . . . the alignment or elevation 3 for . . . fixed works embraced within the practice of civil engineering,” does not make the Act 4 content based. Cal. Bus. & Prof. Code § 8726(a)(1), (3); see Kagan v. City of New Orleans, 957 5 F. Supp. 2d 774, 779 (E.D. La. 2013), aff’d sub nom. Kagan v. City of New Orleans, La., 753 6 F.3d 560 (5th Cir. 2014) (maintaining that the mere fact that the licensing scheme referred to the 7 conduct that it regulated did not mean that it was content based). Adopting plaintiffs’ position 8 that the Act is content based because it describes the content to be regulated would 9 inappropriately blur the distinction between speech and conduct. See United States v. O’Brien, 10 391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of 11 conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to 12 express an idea.”). 13 The court finds nothing on the face of the Act suggesting that it is directed at any 14 message, speaker, or group of speakers. The court is also unable to discern any viewpoints, 15 topics, or subject matters that the Act singles out for differential treatment. See Reagan Nat’l 16 Advert., 142 S. Ct. at 1472 (finding that a sign ordinance was not subject to strict scrutiny because 17 it did not “single out any topic or subject matter for differential treatment”). The Act’s definition 18 of land surveying does not mention speech at all and, instead, focuses on the non-expressive 19 conduct that falls within the purview of the Act, for example, “establish[ing] . . . the alignment or 20 elevation for . . . fixed works embraced within the practice of civil engineering.” Cal. Bus. & 21 Prof. Code § 8726(a)(1). Additionally, the Act distinguishes not based on the speaker but based 22 on whether one is legally authorized to practice land surveying. Cal. Bus. & Prof. Code § 8708. 23 There is no indication that California’s licensing scheme prevents certain speakers or groups of 24 speakers from obtaining a license based on anything but their qualifications. 25 Next, the court must determine whether plaintiffs are likely to show that the Act relies on 26 a content-based purpose or justification because of disagreement with the message it conveys. 27 See Reed, 576 U.S. at 164; Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (2011) (“Even if the 28 hypothetical measure on its face appeared neutral as to content and speaker, its purpose to 1 suppress speech and its unjustified burdens on expression would render it unconstitutional.”). 2 Here, the court also finds nothing to indicate that the Act was motivated by a desire to suppress 3 any message based on disagreement with it. In fact, in their papers, plaintiffs offered no evidence 4 or argument that they intend to express any idea or message through their distribution of land 5 surveying products. At the hearing on the pending motion for a preliminary injunction, when 6 asked by the court what idea plaintiffs were trying to convey with their site plans, plaintiffs 7 responded that they were trying to portray the distance between a fixed work and a property line. 8 Plaintiffs’ response does not go beyond land surveying conduct or claim a “significant expressive 9 element” in their site plans. See HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 10 682, 685 (9th Cir. 2019) (finding that the challenged ordinance—which prohibited processing 11 transactions for unlicensed properties—only regulated conduct, and that this conduct lacked any 12 “significant expressive element”). 13 Rather than regulating the practice of land surveying to suppress speech or expression, 14 California’s purpose and justification for the Act are directed at the non-speech-related risks of 15 land surveying. See Int’l Franchise Ass’n, Inc. v. City of Seattle, 803 F. 3d 389, 409 (9th Cir. 16 2015) (finding that the district court did not err in finding that plaintiff did not show a likelihood 17 of success on the merits with respect to its First Amendment Claim because the challenged 18 ordinance did not target expressive activity). Any limitations on speech are incidental to the 19 Act’s purpose, which is “to safeguard property and public welfare.” Cal. Bus. & Prof. Code § 20 8708. According to declarations defendants filed in support of their position, the consequences of 21 providing incorrect land surveys include incorrect locations of property lines, gaps in the location 22 of property ownership rights, and the construction of fixed improvements that encroach on 23 required setbacks or on the property line itself, all of which can injure the value of the client’s 24 land, create disputes with neighbors regarding property, and result in litigation. (See Doc. Nos. 25 13-1 at ¶ 15; 13-2 at ¶ 6; 13-3 at ¶ 4.) The Act’s licensing requirement helps ensure that those 26 practicing land surveying are qualified and competent to do so and follow the applicable laws. 27 (See Doc. Nos. 13-1 at ¶ 4; 13-2 at ¶ 4; 13-3 at ¶ 3.) 28 ///// 1 ii. Plaintiffs Have Not Clearly Shown That the Act Regulates 2 Speech Rather Than Conduct 3 The First Amendment does not protect “nonexpressive conduct” or “prevent restrictions 4 directed at . . . conduct from imposing incidental burdens on speech.” Sorrell, 564 U.S. at 567. 5 Because “[i]t is possible to find some kernel of expression in almost every activity a person 6 undertakes,” an activity containing a “kernel of expression” is not sufficient to bring the conduct 7 within the First Amendment’s protection. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). The 8 Supreme Court has recently reaffirmed2 that “[s]tates may regulate professional conduct, even 9 though that conduct incidentally involves speech.” NIFLA, 138 S. Ct. at 2372; see also Tingley v. 10 Ferguson, 47 F.4th 1055, 1077, 1078 (9th Cir. 2022) (applying NIFLA and finding that 11 Washington’s conversion therapy law was a regulation on conduct that incidentally burdened 12 speech and that it survived rational basis review). “While drawing the line between speech and 13 conduct can be difficult, [the Supreme Court’s] precedents have long drawn it.” NIFLA, 138 S. 14 Ct. at 2373. 15 Based on the record before the court, it appears that California’s restrictions on land 16 surveying regulate professional conduct by requiring a license and that this requirement does not 17 2 A long line of Supreme Court precedent has upheld states’ power to regulate professional conduct by mandating professional licensing requirements and prohibiting unlicensed practice. 18 See, e.g., Dent v. West Virginia, 129 U.S. 114, 122 (1889) (“As one means to this end [of securing 19 the general welfare] it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently 20 rely . . . . The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession, and 21 attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty.”); Hawker v. New York, 170 U.S. 189, 195 (1898) (“It is within 22 the power of the legislature to enact such laws as will protect the people from ignorant pretenders, 23 and secure them the services of reputable, skilled, and learned men.”) (quotation marks omitted); Schware v. Bd. of Bar Exam. of N.M., 353 U.S. 232, 239 (1957) (“A State can require high 24 standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s 25 fitness or capacity to practice law.”); Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring) (“The modern state owes and attempts to perform a duty to protect the public from 26 those who seek for one purpose or another to obtain its money. When one does so through the 27 practice of a calling, the state may have an interest in shielding the public against the untrustworthy, the incompetent, or the irresponsible, or against unauthorized representation of 28 agency. A usual method of performing this function is through a licensing system.”). 1 impose more than an incidental burden on speech. The Act prevents one from practicing land 2 surveying—i.e., “relocat[ing] . . . the alignment or elevation for any of the fixed works embraced 3 within the practice of civil engineering”—without being licensed. Cal. Bus. & Prof. Code § 4 8726(a)(1). It does not prevent individuals from speaking ab out land surveying topics. For 5 example, the Act does not prevent an unlicensed person from making a speech urging people to 6 adopt certain land surveying practices. See Thomas v. Collins, 323 U.S. at 544 (Jackson, J., 7 concurring) (“A state may forbid one without its license to practice law as a vocation, but I think 8 it could not stop an unlicensed person from making a speech about the rights of man or the rights 9 of labor, or any other kind of right, including recommending that his hearers organize to support 10 his views. Likewise, the state may prohibit the pursuit of medicine as an occupation without its 11 license but I do not think it could make it a crime publicly or privately to speak urging persons to 12 follow or reject any school of medical thought.”). Because the Act regulates what activities fall 13 within the ambit of land surveying requiring licensure, not what one can say, it is a regulation on 14 conduct, not speech. See Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 60 15 (2006) (“[T]he Solomon Amendment regulates conduct, not speech. It affects what law schools 16 must do—afford equal access to military recruiters—not what they may or may not say.”). While 17 it might be possible to find a “kernel of expression” in the practice of land surveying, that is 18 insufficient to trigger strict scrutiny. See Stanglin, 490 U.S. at 25. 19 iii. Plaintiffs Have Not Clearly Shown That the Act Does Not 20 Withstand Scrutiny 21 Having determined that the Act regulates professional conduct with no more than an 22 incidental burden on speech, the court must determine what level of scrutiny is appropriately 23 applied in reviewing the Act. The Ninth Circuit recently stated in Tingley that “Pickup’s 24 treatment of regulations of professional conduct incidentally affecting speech survives NIFLA.” 25 47 F.4th at 1076. In Pickup v. Brown, abrogated on other grounds by NIFLA, 740 F.3d 1208 (9th 26 Cir. 2014), the Ninth Circuit subjected a regulation of professional conduct that had an incidental 27 effect on speech to the rational basis review test. Id. at 1231. Here, because the Act regulates 28 professional conduct, rational basis review is also appropriate. “A law is ‘presumed to be valid 1 and will be sustained’ under rational basis review if it is ‘rationally related to a legitimate state 2 interest.’” Tingley, 47 F.4th at 1078. 3 According to the Act, the licensing requirement at issue advances California’s legitimate 4 interest in “safeguard[ing] property and public welfare.” Ca l. Bus. & Prof. Code § 8708. 5 Without a doubt, safeguarding property and the public welfare is an important and legitimate state 6 interest. According to a declaration submitted by defendants, and as noted above, surveying 7 incorrectly done “may result in incorrect locations of property lines, gaps in the location of 8 property ownership rights, or the construction of fixed improvements that encroach on required 9 setbacks, or even on the property line itself, potentially injuring the value of the client’s land, 10 creating disputes with neighbors whose property lines are affected, and even resulting in 11 litigation.” (Doc. No. 13-1 at ¶ 15.) 12 The means used to effectuate this purpose is rationally related to California’s interests. 13 See F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993) (“[A] legislative choice is not 14 subject to courtroom fact-finding and may be based on rational speculation unsupported by 15 evidence or empirical data.”). California’s legislature may have decided not to exempt land 16 surveys with disclaimers from its licensing requirement to prevent building permits from being 17 issued based on incorrect property lines. The licensing requirement helps ensure that land 18 surveyors have demonstrated competency and knowledge of relevant state laws and that licensees 19 who violate those standards are subject to discipline. (Doc. Nos. 13-1 at ¶ 4; 13-2 at ¶ 4; 13-3 at ¶ 20 3.) As explained above, there is no indication that the challenged Act is in any way related to the 21 suppression of ideas. Rather, the Act merely targets the non-expressive consequences of land 22 surveying without a license. 23 Once a person obtains the required qualifications, they may sell site plans for building 24 permits that include the depiction of property lines and measurements. See Cal. Bus. & Prof. 25 Code § 8708. Even without obtaining a license, plaintiffs remain free to sell site plans that are 26 not land surveying products, and they can speak with the public and their clients regarding any 27 subject they choose. (See Doc. No. 13 at 25.) They can also continue doing business in 28 California by offering site plans that do not require a land surveyor’s license. (See id. at 29.) For 1 these reasons, the court concludes that plaintiffs are unlikely to be successful in showing that the 2 Act does not meet rational basis review. 3 Moreover, defendants have presented an alternative basis upon which to uphold the Act 4 against plaintiffs’ First Amendment challenge. Defendants a rgue in their opposition that the Act 5 would likely be upheld because there is a long tradition of states regulating land surveying. (Doc. 6 No. 13 at 22.) Plaintiffs do not address this argument in their reply. (Doc. No. 14.) The court 7 finds defendants’ reasoning in this regard to be persuasive. 8 The Supreme Court acknowledged in NIFLA that governments may impose even content- 9 based restrictions on speech where there is a “persuasive evidence . . . of a long (if heretofore 10 unrecognized) tradition [of regulation] to that effect.” NIFLA, 138 S. Ct. at 2372 (internal 11 quotations and citations omitted). Recently, in Tingley, the Ninth Circuit relied on this principle 12 as an alternative basis for upholding a challenged Washington law. 47 F.4th at 1080. 13 Here, there is persuasive evidence before the court establishing a long history of 14 regulating land surveying. California has regulated land surveyors since 1891. (Doc. Nos. 13 at 15 22; 13-6 at 6 –8.)3 California’s definition of land surveying has remained relatively unchanged 16 since 1941 and, in that time, has not specifically exempted site plans disclaiming that they are not 17 legal surveys. (Doc. No. 13-6 at 17–79.) Declarations that defendants submitted indicate that all 18 50 states and the U.S. territories require that land surveyors be licensed. (Doc. Nos. 13-1 at ¶ 16; 19 13-2 at ¶ 4; 13-5 at ¶ 4.) Moreover, neither party has cited any case in any jurisdiction striking 20 down a state’s definition of land surveying or requirement that persons engaged in land surveying 21 must be licensed. 22 ///// 23 3 Defendants request that this court take judicial notice of various versions of California statutes 24 regulating land surveying since 1891. (Doc. No. 13-6.) Plaintiffs do not object to defendants’ request for judicial notice. Public records are properly the subject of judicial notice because the 25 contents of such documents contain facts that are not subject to reasonable dispute, and the facts therein “can be accurately and readily determined from sources whose accuracy cannot 26 reasonably be questioned.” Fed. R. Evid. 201(b). Accordingly, the court grants defendants’ 27 request and takes judicial notice of the California statutes. See id.; see also Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). 28 1 Thus, defendants have shown that the Act likely satisfies the requisite scrutiny, whether 2 the court views it as falling under the exception from heightened scrutiny for regulations on 3 professional conduct that incidentally involve speech or as falling under the tradition of land 4 surveying regulations. See Tingley, 47 F.4th at 1080.4 5 b. Plaintiffs Have Failed to Show That the Law and Facts Clearly Favor 6 Their Argument That the Act Is Vague and Overbroad 7 Plaintiffs raise a facial constitutional challenge to California’s definition of land surveying 8 set forth in California Business & Professions Code § 8726 on vagueness and overbreadth 9 grounds. As to this challenge, plaintiffs confront a “heavy burden” in advancing their claim. 10 Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998). As explained below, the court 11 concludes that plaintiffs have not clearly shown that the challenged Act is void for vagueness or 12 overbroad. 13 i. Plaintiffs Have Not Clearly Shown that the Act Is Void for 14 Vagueness 15 “It is a basic principle of due process that an enactment is void for vagueness if its 16 prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 17 The vagueness doctrine reflects two related requirements. First, “laws [must] give the person of 18 ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act 19 accordingly.” Id. at 108. Ordinarily, all that is required to satisfy this due process concern is 20 “‘fair notice’ of the conduct a statute proscribes.” Sessions v. Dimaya, __U.S.__, 138 S. Ct. 1204, 21 1212 (2018). “But where First Amendment freedoms are at stake, an even greater degree of 22 specificity and clarity of laws is required, and courts ask whether language is sufficiently murky 23 that speakers will be compelled to steer too far clear of any forbidden areas.” Edge v. City of 24 Everett, 929 F.3d 657, 664 (9th Cir. 2019) (internal citations, quotations, and brackets omitted). 25 Second, the vagueness doctrine demands that laws “provide explicit standards for those who 26 4 Defendants also argue that the Act would pass muster as a regulation of commercial speech. 27 (Doc. No. 13 at 23.) Because the court has determined that plaintiffs have not shown a likelihood of success on the merits of their claims, it need not address defendants’ commercial speech 28 argument in this order. 1 apply them” in order to avoid “arbitrary and discriminatory enforcement.” Grayned, 408 U.S. at 2 108. Thus, when a statute’s enforcement depends on a “completely subjective standard” it is 3 constitutionally suspect. Id. at 113. 4 Although “vagueness concerns are more acute when a law implicates First Amendment 5 rights,” Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1150 (9th Cir. 2001), “perfect 6 clarity and precise guidance have never been required even of regulations that restrict expressive 7 activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). Rather, “[t]he touchstone of 8 a facial vagueness challenge in the First Amendment context . . . is not whether some amount of 9 legitimate speech will be chilled; it is whether a substantial amount of legitimate speech will be 10 chilled.” Cal. Teachers Ass’n, 271 F.3d at 1152. It follows that “uncertainty at a statute’s 11 margins will not warrant facial invalidation if it is clear what the statute proscribes ‘in the vast 12 majority of its intended applications.’” Id. at 1151 (quoting Hill v. Colorado, 530 U.S. 703, 733 13 (2000)). At bottom, facial invalidation of a statute is “strong medicine” that should be employed 14 “sparingly and only as a last resort.” Finley, 524 U.S. at 580. Thus, the party seeking facial 15 invalidation, even in the First Amendment context, faces a “heavy burden” in advancing their 16 claim. Id. 17 Plaintiffs advance three arguments in contending that they are likely to succeed on the 18 merits of their claim that the Act’s land surveying definition is void for vagueness. (Doc. No. 12- 19 1 at 28–30.) First, plaintiffs contend that “the land surveying definition did not give Plaintiffs fair 20 notice that their site plan drawings were illegal,” that “MySitePlan.com has been in business since 21 2013 and has done thousands of drawings in California” and California building departments had 22 accepted plaintiffs’ drawings without objection. (Id. at 28.) Second, they claim that “the Board’s 23 selective enforcement against Plaintiffs underscores the surveyor-licensing law’s vagueness,” and 24 suggest that contractors and homeowners also engage in unlawful land surveying without being 25 sanctioned. (Id.) Third, they argue that the “the vague text and arbitrary application of 26 California’s surveying definition will chill First Amendment rights.” (Id. at 29.) 27 Responding to plaintiffs’ first argument, defendants maintain that despite plaintiffs’ 28 disclaimers, such as “THIS IS NOT A LEGAL SURVEY, NOR IS IT INTENDED TO BE OR 1 REPLACE ONE,” plaintiffs’ site plans show “property lines and structures with measurements 2 between major features” and “products which provide dimensional ties from existing structures to 3 the property lines” and thus fall squarely within California Business & Professions Code § 4 8726(a)(1) and (3). (See Doc. Nos. 13 at 28; 13-2 at ¶ 9); se e also Cal. Bus. & Prof. Code § 5 8726(a)(1), (3) (defining a person practicing land surveying as one who ““[l]ocates, relocates, 6 establishes, reestablishes, or retraces the alignment or elevation for any of the fixed works 7 embraced within the practice of civil engineering” and “[lo]cates, relocates, establishes, 8 reestablishes, or retraces any property line or boundary of any parcel of land, right-of-way, 9 easement, or alignment of those lines or boundaries.”). The court finds defendants’ arguments in 10 this regard to be persuasive. Defendant Richard B. Moore has submitted a declaration in which 11 he included screenshots of MySitePlan.com showing that the website advertised “site plans for 12 permits,” offering “three standard site plans which vary in level of detail.” (Doc. No. 13-1 at 17.) 13 The website’s “basic site plans” included “property lines,” “primary structures,” “lot 14 dimensions,” “north arrow,” “scale,” and “measurements between major features.” (Doc. No. 13- 15 1 at 18.) A person of ordinary intelligence would have understood from the plain language of the 16 statute—which includes in the definition of land surveying “relocat[ing] . . . the alignment or 17 elevation for any of the fixed works within the practice of civil engineering” and “relocat[ing] . . . 18 any property line or boundary of any parcel of land”—that they cannot distribute or offer to 19 distribute “site plans for permits” or other uses that establish “property lines,” “lot dimensions,” 20 “scale,” or “measurements between major features” without being a licensed land surveyor or 21 being otherwise exempted from the Act and that a disclaimer does not shield them from liability. 22 Cal. Bus. & Prof. Code §§ 8708, 8726(a)(1), (3), (9). Accordingly, plaintiffs should have been 23 aware that their conduct qualified as land surveying, and since they were not licensed or 24 exempted, that they were at risk of being sanctioned. As defendants argue, the fact that 25 MySitePlan.com operated illegally for several years before any enforcement action took place 26 does not render the Act vague. (Doc. No. 13 at 28). The Board is responsible for prosecuting 27 violations of the Act “coming to its notice.” Cal. Bus. & Prof. Code § 8790. According to 28 defendant Moore’s declaration, the Board is not set up in a manner that allows it to engage in 1 general investigations; rather, the Board’s enforcement actions begin when a complaint is filed 2 with it. (Doc. No. 13-1 at ¶ 7.) 3 There is also no support for plaintiffs’ second argument that the Board selectively 4 enforces the Act. On the contrary, the records defendants su bmit5 indicate that the Board 5 investigates all complaints received and has taken enforcement action against other unlicensed 6 persons. (Doc. No. 13-1 at 128–62.) The Board does not waive its ability to enforce the Act 7 merely because some unlicensed persons have not come to the Board’s attention. 8 Defendants do not directly respond to plaintiffs’ third argument that the statutory 9 definition of land surveying would chill First Amendment rights and that “non-surveyors like 10 homeowners and contractors may stop creating site plan drawings altogether after learning of the 11 Board’s application of the licensing law to Plaintiffs.” (Doc. No. 12-1 at 29, 30.) Nonetheless, 12 the court finds that plaintiffs expressed concerns are speculative, without support in the record 13 before the court, and in any event, would not be problematic because it would not involve the 14 chilling of protected expression. Rather, it would involve chilling the type of unlawful land 15 surveying conduct that plaintiffs are purportedly engaged in. Moreover, even if there might be 16 “uncertainty at [the] statute’s margins,” plaintiffs have not shown that a “substantial amount of 17 legitimate speech will be chilled” by the Act’s definition of land surveying. See Cal. Teachers 18 Ass’n, 271 F.3d at 1151, 1152. 19 For these reasons, plaintiffs’ challenge to the Act on void for vagueness grounds is not 20 likely to succeed on its merits. 21 ///// 22 ///// 23 24 5 Defendants seek judicial notice of exhibits 9 through 14 of the declaration of Richard B. Moore. (Doc Nos. 13-1 at 128–62; 13-6 at 3.) These are records of the Board’s final enforcement actions. 25 Having reviewed defendants’ request, which plaintiffs do not oppose, the court takes judicial notice of these documents for the limited purpose of establishing that the Board has taken 26 enforcement against others. See Fed. R. Evid. 201(b)–(c); Burnell v. Marin Humane Soc’y, No. 27 14-cv-05635-JSC, 2015 WL 6746818, at *2 n.1 (N.D. Cal. Nov. 5, 2015) (stating that “it is well established that a court may take judicial notice of records from other court proceedings, . . . 28 including state judicial and administrative proceedings in particular”) (citations omitted). 1 ii. Plaintiffs Have Not Clearly Shown That the Act Is Overbroad 2 Plaintiffs also complain that California Business & Professions Code § 8726(a) is facially 3 unconstitutional because “it is so overbroad that it criminalizes innumerable wholly-innocuous 4 pictures.” (Doc. No. 1 at ¶ 137.) 5 Under the doctrine of overbreadth, litigants may be “permitted to challenge a statute not 6 because their own rights of free expression are violated, but because of a judicial prediction or 7 assumption that the statute’s very existence may cause others not before the court to refrain from 8 constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 9 (1973). However, the Supreme Court has cautioned that invalidating a statute under the First 10 Amendment overbreadth doctrine is “‘strong medicine’ that is not to be casually employed.” 11 United States v. Sineneng-Smith, __ U.S. __, 140 S. Ct. 1575, 1581 (2020) (quotations and 12 citations omitted). A statute is not overbroad just because “one can conceive of some 13 impermissible applications.” Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 14 789, 800 (1984). Rather, particularly in cases like this one where the challenged law regulates 15 conduct and not merely speech, the overbreadth must “not only be real, but substantial as well, 16 judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615; see also 17 Knox v. Brnovich, 907 F.3d 1167, 1180 (9th Cir. 2018) (“In the First Amendment context, a party 18 bringing a facial challenge need show only that ‘a substantial number of [a law’s] applications are 19 unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”) (quoting United 20 States v. Stevens, 559 U.S. 460, 473 (2010)); United States v. Osinger, 753 F.3d 939 (9th Cir. 21 2014) (“An overbreadth challenge . . . will rarely succeed against a law or regulation that is not 22 specifically addressed to speech or to conduct necessarily associated with speech (such as 23 picketing or demonstrating).”) (citations, internal quotations, and modifications omitted). 24 According to plaintiffs, the Act’s definition of land surveying is overbroad because it 25 “bans a substantial amount of informal maps (based on their content), no matter whether those 26 depictions purport to provide location information with any legally binding effect.” (Doc. No. 14 27 at 18.) At the hearing on the pending motion, plaintiffs commented that their site plans are only 28 intended to be used for “non-authoritative” purposes, as the opening to a conversation with 1 permitting agencies, and not to definitively establish property boundaries. In support of their 2 claim that the Act’s definition of land surveying is overbroad, plaintiffs pointed to the fact that the 3 definition of land surveying from the National Council of Examiners for Engineering and 4 Surveying (“NCEES”) Model Rules excludes non-authoritat ive activities from its definition of 5 land surveying. (Doc. No. 1 at ¶¶ 91, 92.)6 They complain that “[t]he Board has never adjusted 6 its own rules or enforcement practices to reflect the NCEES Model Rules. To the contrary . . . the 7 Board enforces California’s vague, broad, and outdated statutes, rules, and regulations governing 8 ‘land surveying’ to their utmost limits.” (Id. at ¶ 96.) Even if the NCEES Model Rules do not 9 prohibit the dissemination of the type of non-authoritative, preliminary site plans that plaintiffs 10 claim they make, California is not required to follow the NCEES Model Rules. Within the 11 bounds of the U.S. Constitution, it is within each state’s police power to determine how to 12 regulate land surveying, if at all. 13 The Act has the “plainly legitimate sweep” of protecting the public’s welfare and 14 maintaining property lines. See Broadrick, 413 U.S. at 615. To the extent that the Act may 15 restrict expressive conduct, plaintiffs have failed to show a “substantial number” of instances 16 where it cannot be applied constitutionally in relation to its “plainly legitimate sweep.” See Knox, 17 907 F.3d at 1180. Plaintiffs have not cited to any evidence that California Business & 18 Professions Code § 8726 has been enforced against someone engaged in protected speech, despite 19 the Act’s long history. (Doc. No. 13-6 at 17, 19 [excerpt of the 1941 Act indicating that the 20 definition of land surveying has changed little since then]). Instead, plaintiffs provide 21 hypothetical prosecutions of protected speech under the Act, such as for drawing “a simple map 22 on a cocktail napkin for a lost tourist.” (Doc. No. 12-1 at 24.) Because plaintiffs have not shown 23 that the alleged overbreadth is “real” or “substantial,” they are not likely to prevail on the merits 24 6 At the hearing, defendants’ counsel disagreed with plaintiffs’ characterization of their site plans 25 as merely being preliminary, arguing instead that the site plan dimensions are relied upon for obtaining building permits. Additionally, David Cox, the Chief Executive Officer of the NCEES, 26 has submitted a declaration stating that the exclusions under the NCEES Model Law do “not 27 extend to providing building permits or depicting fixed works” and that plaintiffs would have violated the NCEES Model Law and Rules if they had been applicable. (Doc. No. 13-5 at ¶¶ 7, 28 12.) 1 with respect to their overbreadth challenge to the Act. See Broadrick, 413 U.S. at 615; United 2 States v. Phomma, 561 F. Supp. 3d 1059, 1068 (D. Or. 2021) (holding that the party failed to 3 make the requisite showing that the challenged statute was overbroad because they had not cited 4 any prosecutions under the statute for engaging in protected speech and provided only 5 hypothetical situations). 6 2. Irreparable Harm 7 The phrase “irreparable harm” is a term of art, meaning a party has suffered a wrong 8 which cannot be adequately compensated by remedies available at law, such as monetary 9 damages. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see also E. Bay 10 Sanctuary Covenant v. Biden, 993 F.3d 640, 677 (9th Cir. 2021) (“Irreparable harm is ‘harm for 11 which there is no adequate legal remedy, such as an award for damages.’”); Los Angeles Mem’l 12 Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980) (“The 13 possibility that adequate compensatory or other corrective relief will be available at a later date, 14 in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.”) (quoting 15 Sampson v. Murray, 415 U.S. 61, 90 (1974)). 16 Following the Supreme Court’s decision in Winter, one moving for a preliminary 17 injunction must show that irreparable harm is “likely” to occur. Ctr. for Food Safety, 636 F.3d at 18 1172; All. for Wild Rockies, 632 F.3d at 1131. In this regard, a showing of a speculative injury, or 19 mere allegations of an imminent harm that would satisfy standing, are not sufficient to warrant 20 the issuance of a preliminary injunction. See Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 21 668, 674 (9th Cir. 1988); Goldie’s Bookstore, Inc. v. Superior Ct. of State of Cal., 739 F.2d 466, 22 472 (9th Cir. 1984). Rather, a plaintiff must demonstrate that they face a real and immediate 23 threat of an irreparable harm. See Caribbean Marine, 844 F.2d at 674; Midgett v. Tri-Cnty. 24 Metro. Transp. Dist. of Or., 254 F.3d 846, 850–51 (9th Cir. 2001). 25 Plaintiffs contend that they will suffer irreparable harm absent this court granting 26 preliminary injunctive relief. (Doc. No. 12-1 at 30.) They allege loss of their First Amendment 27 freedoms, which typically constitute irreparable harm. (Id. at 30, 31); see also Elrod v. Burns, 28 427 U.S. 347, 373–74 (1976) (“The loss of First Amendment freedoms, for even minimal periods 1 of time, unquestionably constitutes irreparable injury.”) (citing N.Y. Times Co. v. United States, 2 403 U.S. 713 (1971)). However, the court has already concluded that plaintiffs have failed to 3 demonstrate a likelihood of success on the merits of their First Amendment claim, and, therefore, 4 that harm cannot be considered. 5 Plaintiffs also complain that without an injunction, a sizeable part of plaintiffs’ business 6 will be impacted because MySitePlan.com’s sale of site plan drawings in California constitutes 7 approximately 16 percent of its existing total business. (Doc. Nos. 12-1 at 31; 12-2 at ¶ 81.) 8 They also claim that a preliminary injunction is needed to prevent “permanently losing a satisfied 9 customer base Plaintiffs spent years and money carefully cultivating.” (Doc. No. 12-1 at 31.) 10 Conversely, defendants contend that plaintiffs overstate the impact of the Act on their business 11 due to the incorrect assumption that they cannot operate in California at all without Mr. 12 Crownholm becoming a licensed land surveyor. (Doc. No. 13 at 29.) According to defendants, 13 plaintiffs could still do the kinds of drawings that they already make for general informational 14 uses: “There is no reason why these kinds of drawings necessarily need to indicate for example, 15 measurements between structures and property lines, thereby crossing over from drafting into 16 land surveying.” (Id. at 30.) 17 Even assuming that plaintiffs’ assessment is not overstated, these effects do not constitute 18 irreparable harm that would warrant the issuance of a preliminary injunction. All of the specified 19 harms could be adequately compensated with money damages if plaintiffs were to ultimately 20 succeed in this action. See Keyoni Enters., LLC v. Cnty. of Maui, No. 15-cv-00086-DKW, 2015 21 WL 1470847, at *9 (D. Haw. Mar. 30, 2015) (citations and quotations omitted) (finding that the 22 plaintiffs had not shown an irreparable injury to warrant a preliminary injunction where the 23 plaintiffs complained “that without an injunction, their businesses would suffer a 75% loss in 24 sales, fines totaling as much as $1,000 per day from the date the NOVs were issued, and 25 ultimately, the potential shuttering of operations.”). 26 The court finds that plaintiffs have not satisfied their burden of showing that they are 27 likely to face imminent irreparable harm absent preliminary injunctive relief. 28 ///// 1 3. Balance of Equities and Public Interest 2 Courts “must balance the competing claims of injury and must consider the effect on each 3 party of the granting or withholding of the requested relief,” and “should pay particular regard for 4 the public consequences in employing the extraordinary rem edy of injunction.” Winter, 555 U.S. 5 at 24. “In assessing whether the plaintiffs have met this burden, the district court has a duty to 6 balance the interests of all parties and weigh the damage to each.” Stormans, 586 F.3d at 1138 7 (internal quotation marks and alteration omitted). “Where the government is a party to a case in 8 which a preliminary injunction is sought, the balance of the equities and public interest factors 9 merge.” Roman v. Wolf, 977 F.3d 935, 940–41 (9th Cir. 2020)) (citing Drakes Bay Oyster Co. v. 10 Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)). 11 Plaintiffs argue that because they have raised serious First Amendment concerns, the 12 balance of hardships tip sharply in their favor. (Doc. No. 12-1 at 31.) However, having 13 determined that plaintiffs have not raised serious First Amendment concerns, these considerations 14 do not apply. 15 Rather, California is likely to suffer irreparable harm if the court were to enjoin its 16 enforcement of the Act. See Maryland v. King, 567 U.S. 1301, 1303 (2012); see also Wiese v. 17 Becerra, 263 F. Supp. 3d 986, 994 (E.D. Cal. 2017) (“The State has a substantial interest . . . in 18 enforcing validly enacted statutes.”). In enacting California Business & Professions Code §§ 19 8726 and 8792, the California legislature aimed to prevent the public from being adversely 20 affected by ignorance and incapacity in the practice of land surveying. To that end, the 21 legislature mandated a certain level of knowledge and skill in the land surveying profession and 22 created the Board to oversee the statutory scheme. Enjoining the law would prevent the state 23 from conducting meaningful oversight of unlicensed land surveying and thus would expose 24 Californians to the consequences of ignorance and incapacity in the pursuit of land surveying. 25 (See Doc. Nos. 13-1 at ¶ 4; 13-2 at ¶ 4; 13-3 at ¶ 3.) 26 Accordingly, under the applicable legal standards, plaintiffs have not satisfied their burden 27 of showing that the balance of the equities and the public interest weighs in favor of granting their 28 request for preliminary injunctive relief. 1 CONCLUSION 2 For the reasons explained above, plaintiffs’ motion for a preliminary injunction (Doc. No. 3 | 12) is denied. 4 IT IS SO ORDERED. > | Dated: _ December 23, 2022 Dab A. 2, eel 6 UNITED STATES DISTRIC¥ JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24