Livingwell Medical Clinic, Inc v. Kamala Harris

669 F. App'x 493

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 14, 2016
• Docket: 15-17497
• Status: Unpublished

Opinion

MEMORANDUM *

Livingwell Medical Clinic, Inc., et al. (collectively Livingwell) appeals from the district court’s denial of their motion for a preliminary injunction to prevent the enforcement of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the FACT Act or the Act). We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.

1. The district court erroneously imposed a higher than appropriate standard on the ground that Livingwell’s motion for a preliminary injunction targeted a law. See Katie A., ex rel. Ludin v. Los Angeles Cty., 481 F.3d 1150, 1155 n.12 (9th Cir. 2007). And to the extent that the district court cited Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (order), as grounds for raising Livingwell’s burden, this was erroneous. See Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009), vacated on other grounds by Douglas v. Indep. Living Ctr. of S. Cal, Inc., 565 U.S. 606, 132 S.Ct. 1204, 182 L.Ed.2d 101 (2012).

This error, however, was harmless because the district court properly denied the motion for a preliminary injunction. See Nat’l Inst. of Family & Life Advocates (ÑIFLA) v. Harris, No. 16-55249, Slip op. at 5, 2016 WL 5956734 (9th. Cir. 2016).

2. The district court properly found that Livingwell cannot demonstrate a likelihood of success on -the merits of their First Amendment free speech claim. See Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Act regulates licensed clinics’ professional speech, and is subject to intermediate scrutiny, which it survives. See ÑIF-LA, Slip op. at 26-34. Because the Act survives intermediate scrutiny, any error the district court may have made when applying intermediate scrutiny is harmless. The Act’s notice that applies to unlicensed clinics survives any level of review. See id. at 34-37, 129 S.Ct. 366.

3. The district court did not improperly place a burden on Livingwell to prove that the Act did not regulate commercial speech, as Livingwell contends. Any error would also be harmless as the Act does not regulate commercial speech. See id. at 18, 129 S.Ct. 366 n.5.

4. Because we affirm the district court’s finding that Livingwell cannot demonstrate a likelihood of success on their First Amendment claim, thus failing to meet the first, most important Winter factor, see Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc), we need not parse their showing under the remaining Winter factors. 1

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3,

1 . We also conclude that Livingwell have not forth in Alliance for the Wild Rockies v. Cott- raised "serious questions” going to the merits rell, 632 F.3d 1127, 1134-35 (9th Cir. 2011), of their claims; thus, the alternate test set does not apply.