FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAMEDA BOOKS, INC., AND
HIGHLAND BOOKS, INC., a
California corporation, No. 09-55367
Plaintiffs-Appellees, D.C. No.
v. 2:95-CV-7771-DDP
(CTx)
CITY OF LOS ANGELES, a municipal OPINION
corporation,
Defendant-Appellant.
On Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
October 6, 2010—Pasadena, California
Filed January 28, 2011
Before: Richard D. Cudahy,* Kim McLane Wardlaw and
William A. Fletcher, Circuit Judges.
Opinion by Judge Cudahy
*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
1739
1742 ALAMEDA BOOKS v. LOS ANGELES
COUNSEL
Clyde DeWitt and Cathy E. Crosson, Law Offices of Clyde
DeWitt, for the plaintiffs-appellees.
Carmen A. Trutanich, City Attorney, Tayo A. Popoola, Dep-
uty City Attorney, and Steven N. Blau, Deputy City Attorney,
for the defendant-appellant.
OPINION
CUDAHY, Circuit Judge:
The issue in this case is the district court’s grant of sum-
mary judgment against the City of Los Angeles on the
grounds that the City’s Ordinance for the dispersal of adult
entertainment businesses violates the First Amendment. We
reverse. The district court erred by granting summary judg-
ALAMEDA BOOKS v. LOS ANGELES 1743
ment on the issue whether the plaintiffs had presented “actual
and convincing” evidence “casting doubt” on the City’s ratio-
nale for its Ordinance.
I. Facts and Procedural History
The facts of this resilient case are not in dispute. Toward
the end of the 1960’s the City of Los Angeles (City),
defendant-appellant, became concerned with a perceived pro-
liferation of adult-themed1 businesses. Acting on that concern,
the City directed the Los Angeles Police Department to study
the effects of concentrations of adult businesses on crime in
the surrounding areas.
The Police Department (L.A.P.D.) report compared arrests
between 1969 and 1975 in Hollywood, an area where adult
entertainment businesses are concentrated, with those in the
rest of Los Angeles in the same period. The L.A.P.D. deter-
mined that crime rates grew at higher rates in Hollywood. For
instance, “every Part I crime [including homicide, rape,
aggravated assault and robbery] committed against a person,
not against property, increased at a higher rate in [the] Holly-
wood Area than in the City-wide total.” In addition,
“[p]rostitution arrests increased at a rate 15 times greater than
the City average,” and “pandering arrests in [the] Hollywood
Area increased by 475.0 percent.” From the L.A.P.D. data, the
City concluded that concentrations of adult businesses are
associated with increased rates of prostitution, robbery,
assault and theft in the surrounding area.
In 1978, the City enacted an Ordinance, Ordinance No.
151,294, adding a new section to the Los Angeles Municipal
Code, L.A.M.C. § 12.70 (1977). Section 12.70 defined
numerous categories of “adult entertainment businesses,” and
1
Consistent with prior opinions in this litigation, we adopt the linguistic
convention of the City Ordinance when discussing the subject matter the
Ordinance regulates.
1744 ALAMEDA BOOKS v. LOS ANGELES
required that they be geographically dispersed. Specifically,
no two adult entertainment businesses could be located within
1,000 feet of one another. L.A.M.C. § 12.70(C).
Of importance for this case, the Ordinance defined “Adult
Arcade” as an “establishment where, for any form of consid-
eration, one or more motion picture projectors . . . or similar
machines, for viewing by five or fewer persons each, are used
to show [adult-themed films].” L.A.M.C. § 12.70(B)(1). An
“Adult Bookstore” was defined as an “establishment which
has as a substantial portion of its stock-in-trade and offers for
sale . . . any one or more of the following: (a) [adult-themed
print media] or (b) [adult] [i]nstruments, devices or parapher-
nalia.” Id. § 12.70(B)(2). Pursuant to the 1978 Ordinance,
then, it was unlawful to operate an adult arcade within 1,000
feet of an adult bookstore.
A problem arose for the City when it realized that the Ordi-
nance did not explicitly prohibit the operation of an adult
arcade and an adult bookstore within the same establishment.
Therefore, in 1983 the City enacted Ordinance No. 157,538,
amending the language of the existing ordinance to remedy
this oversight. Specifically, L.A.M.C. § 12.70(C) was
amended to provide that no two adult entertainment busi-
nesses could operate at the same location. In addition, the
1983 amendments added L.A.M.C. § 12.70(B)(17), which
clarifies that each adult entertainment business as defined in
the Ordinance “constitute[s] a separate adult entertainment
business[ ] even if operated in conjunction with another adult
entertainment business at the same establishment.” Thus,
beginning in 1983, the L.A.M.C. unambiguously prohibited
the operation of an adult arcade within an adult bookstore.
Plaintiffs Alameda Books and Highland Books opened for
business in 1991 and 1993, respectively.2 Both businesses sell
2
The two plaintiffs were merged in 2002 into a single corporation, Bev-
erly Books, Inc., which operates the two stores. To be consistent with the
designations used throughout this prolonged litigation, we shall continue
to refer to the plaintiffs as Alameda Books and Highland Books. See Fed.
R. Civ. P. 25(c).
ALAMEDA BOOKS v. LOS ANGELES 1745
adult print media and videotapes, and both feature adult
arcades where customers can view videotapes for a fee.
Therefore, both Alameda Books and Highland Books were
and are adult bookstores containing an adult arcade, as
defined by the L.A.M.C. From the day they began operating
as combined adult retail and arcade establishments, then, both
businesses operated in violation of L.A.M.C. § 12.70. This
fact is uncontested.
Although their businesses were unlawful, the plaintiffs
operated without government interference for several years.3
On March 15 of 1995, a city inspector informed both parties
that they were violating the Ordinance. On November 16,
1995, the plaintiffs filed suit in the U.S. District Court for the
Central District of California, pursuant to 42 U.S.C. § 1983.
They sought injunctive relief and a declaratory judgment that
enforcing the Ordinance against the plaintiffs would violate
their First Amendment rights.
Subsequently, the district court granted summary judgment
in favor of the plaintiffs. The court reasoned that, when the
City amended the Ordinance in 1983, it had no basis for
believing that the operation of combined (as opposed to
neighboring) adult businesses led to harmful secondary
effects. Alameda Books v. Los Angeles, No. CV 95-7771-DDP
(CTx), slip op. at 13 (C.D. Cal. May 28, 1998). The court fur-
ther asserted that “[t]he classification of certain adult enter-
tainment activities as separate businesses . . . is subject to a
[heightened] standard of review because the City applies these
3
The U.S. District Court for the Central District of California enjoined
the enforcement of the amended Ordinance in connection with litigation
involving another adult entertainment business. See Topanga Press, Inc.
v. City of Los Angeles, 989 F.2d 1524, 1526 (9th Cir. 1993), cert. denied,
511 U.S. 1030 (1994). A settlement following the Topanga Press litiga-
tion included a permanent injunction against the enforcement of the Ordi-
nance against the Topanga Press plaintiffs. The City settled with
additional adult entertainment business defendants in 1995, before the
present case began.
1746 ALAMEDA BOOKS v. LOS ANGELES
definitions only to businesses that engage in protected
speech.” Id. at 20. The district court determined that the Ordi-
nance failed to survive strict scrutiny, because the City had
not demonstrated that the ordinance was necessary to support
a compelling government interest. Id. at 29. Therefore, it was
unconstitutional under the First and Fourteenth Amendments.
Id. at 33.
The City appealed from the grant of summary judgment,
and we affirmed the district court on alternative grounds. Ala-
meda Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th
Cir. 2000). In particular, we held that the question whether
L.A.M.C. § 12.70(C) is content-based or content-neutral need
not be reached, because the Ordinance fails to meet even the
more permissive intermediate scrutiny that would apply to a
content-neutral regulation. Id. at 723. Although the City had
a “substantial . . . interest” in reducing crime, the City had
failed to show that the Ordinance was “designed to serve” this
interest. Id. at 723-24. This was true because the 1977 Study
focused only on the effect of establishments concentrated
within a particular area, and had nothing to say about the
effects of businesses within the same establishment. Id. at
724-25.
The Supreme Court reversed this decision and remanded
the case in a plurality decision. City of Los Angeles v. Ala-
meda Books, Inc., 535 U.S. 425 (2002). In doing so, the Court
established a new framework for reviewing ordinances aimed
at reducing the secondary effects of adult entertainment busi-
nesses.
Justice O’Connor’s plurality opinion reaffirmed the three-
part framework established in City of Renton v. Playtime The-
atres, Inc., 475 U.S. 41 (1986), for determining the legality
under the First Amendment of restrictions on adult entertain-
ment businesses. Alameda Books, 535 U.S. at 433. The Court
then prescribed a three-part burden-shifting test for determin-
ALAMEDA BOOKS v. LOS ANGELES 1747
ing whether a regulation meets the third step4 of the Renton
test, which requires the restriction to serve a substantial gov-
ernment interest. The burden-shifting framework provides
that after a municipality satisfies its burden of supplying evi-
dence supporting its rationale for passing an ordinance, the
plaintiffs may attempt to “cast doubt” on the municipality’s
evidence and rationale, after which the municipality may
attempt to rehabilitate its rationale. Alameda Books, 535 U.S.
at 438-39.
The four-member plurality of the Court further explained
that contrary to our decision, it was reasonable for the City to
infer from the 1977 study that a concentration of adult opera-
tions in a single establishment will lead to increased undesir-
able effects. Id. at 436-37. The plurality concluded it was
error to require the City to present evidence not only showing
that the Ordinance will reduce undesirable effects, but also
demonstrating that such evidence does not support some other
method of reducing undesirable effects. Id. at 438. Therefore,
the 1977 study provided an adequate rationale for the Ordi-
nance, which satisfied the first step of the new Alameda
Books burden-shifting framework. Id. at 439, 442.
Justice Kennedy wrote separately in concurrence with Jus-
tice O’Connor’s plurality opinion. Because he expressed a
conditional agreement with the plurality, his narrower reason-
ing is the only reasoning that commands the majority of the
Court, and has been treated as binding. See Ctr. for Fair Pub.
Policy v. Maricopa Cnty., 336 F.3d 1153, 1161 (9th Cir.
2003) (“Justice Kennedy’s concurrence may be regarded as
the controlling opinion.”) (citing Marks v. United States, 430
U.S. 188 (1976)).
4
The first step is to inquire whether the regulation bans the protected
speech altogether, or whether it can be viewed as a time, place and manner
restriction. See Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 1013
(9th Cir. 2004). If the latter obtains, then the second step is to inquire
whether the regulation is designed to remedy secondary effects of speech,
and therefore subject to intermediate scrutiny. Id.
1748 ALAMEDA BOOKS v. LOS ANGELES
Most important for our purposes, Justice Kennedy’s con-
currence provided that “a city must advance some basis to
show that its regulation has the purpose and effect of sup-
pressing secondary effects, while leaving the quantity and
accessibility of speech substantially intact.” 535 U.S. at 449.
Put another way, “[a] city may not assert that it will reduce
secondary effects by reducing speech in the same proportion.”
Id. Justice Kennedy reasoned that “[i]t is no trick to reduce
secondary effects by reducing speech or its audience.” Id. at
450. Applying that principle to the present facts, the concur-
rence explained that, “the premise [underlying the Ordinance]
must be that businesses — even those that have always been
under one roof — will for the most part disperse rather than
shut down.” Id. at 451. Taken as a whole, then, the Supreme
Court’s Alameda Books opinion requires courts to employ the
new burden-shifting framework when applying the traditional
Renton analysis, and provides that a municipality’s justifica-
tion must not be that its regulation will reduce secondary
effects simply by reducing speech proportionately. However,
the application of such a principle is not as simple as might
appear.
The Supreme Court remanded the case, and we, in turn,
remanded it to the district court. 295 F.3d 1024 (9th Cir.
2002). Shortly thereafter, the parties agreed to postpone brief-
ing and discovery until certain other Ninth Circuit cases inter-
preting the Supreme Court Alameda Books decision were
decided. See Alameda Books, No. CV 95-7771 DDP (CTx),
2008 U.S. Dist. LEXIS 108860, at *9 (C.D. Cal. July 16,
2008). This agreement is responsible for the lengthy interval
between the 2002 Supreme Court remand and the district
court’s 2008 re-adjudication.
In 2007, the district court entertained the parties’ cross-
motions for summary judgment. The court’s decision thor-
oughly and meticulously discusses the history of the case and
other relevant case law before reaching the merits. In consid-
ering the parties’ summary judgment motions, the district
ALAMEDA BOOKS v. LOS ANGELES 1749
court made several threshold decisions of importance to this
appeal. First, the court struck the second of two5 declarations
by the City’s expert witness Vanita Spaulding, a business val-
uation professional, who offered a declaration to the effect
that it would be possible to split a previously joined adult
arcade business and adult bookstore business while preserving
the economic viability of the arcade. She arrived at this con-
clusion by analyzing the plaintiffs’ financial statements. She
analyzed the profitability of their retail businesses and their
arcade businesses by analyzing the existing data for each of
the two kinds of businesses, as currently operated. She made
no attempt to determine the extent, if any, to which the physi-
cal association of the two kinds of business contributed to the
profitability of either one.
The plaintiffs argued that Spaulding’s declaration should be
stricken because it would confuse the issues and cause undue
delay under Fed. R. Evid. 403, would not assist the trier of
fact under Fed. R. Evid. 702 and because it lacked foundation
under Fed. R. Evid. 703.
The district court found that Spaulding’s testimony was
confined only to the profitability of adult arcades which were
part of adult retail establishments. But the fact that an adult
arcade is profitable when physically joined to another adult
business, did not, in the district court’s view, fairly lead to the
conclusion that an adult arcade could operate profitably as a
free-standing unit. The court noted that “the question in this
case is not whether the arcade portion of the combination
business is profitable . . . [but] whether the arcade as a stand-
alone business will continue to exist once unmoored from the
bookstore component.” Alameda Books, 2008 U.S. Dist.
LEXIS 108860, at *37-38. The court further stated that
Spaulding had no basis for concluding that patrons would
5
Vanita Spaulding’s first declaration, which the district court did not
strike, addresses the existence of alternative avenues for viewing adult
entertainment.
1750 ALAMEDA BOOKS v. LOS ANGELES
visit a free-standing arcade business because she did not pur-
port to have any specific knowledge of the industry and had
not interviewed business owners or customers. Id. at *38-39.
Nevertheless, the district court did not find Spaulding’s sta-
tistics to be incredible. Rather, the court described her review
of the costs and expenses of the retail and arcade components
of the combined stores, as “an analysis with which no one dis-
agrees.” Id. at *51. Therefore, despite striking Spaulding’s
declaration, the court accepted that the arcade components of
the plaintiffs’ businesses as presently operated are quite prof-
itable, accounting for approximately one-half of the revenues
of the combined businesses and the majority of the stores’ net
income. Thus, even if this evidence is not admissible for the
immediate purpose intended, it may be useful in a more
extended analysis.
The district court’s second important threshold decision
was to reject the City’s objections to declarations by the plain-
tiffs’ two witnesses, William Andrus and Rick Hinckley. Wil-
liam Andrus is the vice-president of Beverly Books, the
corporation which now owns Alameda Books and Highland
Books. He testified that he has been involved in the adult
entertainment retail business for twenty years. He further
opined that a stand-alone adult arcade would not be profitable
because many current users of the arcade are retail patrons
considering a purchasing decision, conveniently accommo-
dated by a retail store in the same premises. In addition, a
stand-alone adult arcade would be viewed to be “seedy” like
adult movie theaters, most of which went out of business
when prerecorded adult videos became available. He testified
in conclusion that, “I have never seen or heard of a business
that existed only as an adult arcade.”
Rick Hinckley is the president of Video Simplex, a San
Diego company that builds and installs adult arcade systems.
The company installed the adult arcade systems in both Ala-
meda Books and Highland Books, and Hinckley was person-
ALAMEDA BOOKS v. LOS ANGELES 1751
ally involved in those installations. He also testified, like
Andrus, that the consensus of those in the adult entertainment
industry was that a stand-alone adult arcade would not attract
a significant number of customers because many current users
are retail patrons considering whether to purchase merchan-
dise available in a retail store located in the same premises as
an arcade. He repeated the observation that a stand-alone
adult arcade, like an adult motion picture theater, would be
viewed as “seedy.”
Both the Andrus and Hinckley declarations are brief and
unelaborated. Neither Andrus nor Hinckley purported to offer
any empirical support for the shared position that a stand-
alone adult arcade would not be viable. The content of the
declarations is strikingly similar, and certain important pas-
sages are identical. For example, Andrus and Hinckley each
declared, verbatim, as follows:
[A] stand-alone adult arcade has the same image
problem as do auditorium adult motion picture the-
atres, which have become all but extinct because of
that problem [or “reason”], namely, that they are per-
ceived by the public as “seedy” and as attracting an
undesirable element of customers, an image that no
longer attaches to adult retail businesses, which tend
to be more aesthetically attractive.[Footnote] That
explains why free-standing adult theaters (i.e.,
auditorium-style theaters) nearly vanished beginning
as prerecorded home adult videotapes became more
widely available. Although such businesses were
reasonably profitable during the 1970s, as prere-
corded adult videotapes became more widely avail-
able during the 1980s, nearly all of them went out of
business, the few remaining being those that were
annexed to adult book and video stores, as presently
are all adult arcades.
The text of the footnote referenced midway through this pas-
sage and dealing with the increasingly “couples-oriented”
1752 ALAMEDA BOOKS v. LOS ANGELES
nature of adult entertainment retail is also identical in both
declarations.
The City objected to the Andrus and Hinckley declarations,
not alleging explicitly that the declarants were potentially
biased, but instead that their testimony was speculative and
lacking in foundation. But the district court rejected the City’s
arguments, observing that Andrus and Hinckley, “with their
decades of experience owning and operating the specific busi-
nesses at issue in this case and their knowledge of the indus-
try, have sufficient foundation to testify that they are not
aware of any stand-alone arcade ever existing.” Alameda
Books, 2008 U.S. Dist. LEXIS 108860, at *47-48. Because
the declarants were testifying as to their understanding of the
industry, and not to a scientific process of causation, their
industry experience was “all the foundation necessary.” Id. at
49. The district court acknowledged that both witnesses were
closely associated with a party to the litigation, but did not
address the obvious bias of these witnesses relating to their
close association and apparent financial interest.
Applying the second step6 of the Supreme Court’s Alameda
Books burden-shifting framework, the district court held that
“[p]laintiffs’ evidence casts the requisite doubt” because the
Andrus and Hinckley declarations “suggest[ ] that the City’s
intent in passing the ordinances was to reduce secondary
effects by closing arcades — impermissibly ‘reducing speech
in the same proportion.’ ” Id. at 49 (citing Alameda Books,
535 U.S. at 449 (Kennedy, J., concurring)). Since Vanita
Spaulding’s declaration had been struck, there remained little
with which the City could rebut the plaintiffs’ evidence that
the Ordinance ran afoul of Justice Kennedy’s concurrence.
Thus, the district court ruled,
6
As noted above, the Supreme Court had held that the 1977 Study was
sufficient foundation for the City’s Ordinance under the first step of the
Alameda Books framework. 535 U.S. at 436-37.
ALAMEDA BOOKS v. LOS ANGELES 1753
Defendant now bears the burden to present some evi-
dence that arcades could survive on their own. The
City has not made this showing. Instead, the City
relies on the [sic] Vanita Spaulding’s Second Decla-
ration, which reviews the revenue and expenses gen-
erated and incurred by the arcade and retail
components . . . . However, as already discussed, her
declaration is not admissible.
Id. at *51-52. The court went on to conclude that “[t]here is
. . . no question of material fact but that Los Angeles Munici-
pal Code section 12.70(C) cannot withstand intermediate
scrutiny, and that it violates the First Amendment.” Id. at *60-
61. Accordingly, the district court granted summary judgment
for the plaintiffs. The City filed a timely appeal.
II. Applicable Law
A. First Amendment Framework Post-Alameda Books
[1] Following Alameda Books, the test for the constitution-
ality under the First Amendment of a dispersal ordinance
relating to adult businesses remains that prescribed in Renton
v. Playtime Theatres, Inc., 475 U.S. 41 (1986).7 We have
encapsulated that test recently as follows:
First, we must determine whether the regulation is a
complete ban on protected expression. Renton, 475
U.S. at 46. Second, we must determine whether the
county’s purpose in enacting the provision is the
amelioration of secondary effects. Id. at 47. If so, it
is subject to intermediate scrutiny, and we must ask
whether the provision is designed to serve a substan-
7
See Ctr. for Fair Pub. Policy, 336 F.3d at 1164 (“Because five mem-
bers of the Supreme Court agreed that ‘the central holding of Renton is
sound’ we apply the traditional three-part test in order to determine the
constitutionality of [an ordinance].”).
1754 ALAMEDA BOOKS v. LOS ANGELES
tial government interest, and whether reasonable
alternative avenues of communication remain avail-
able. Id.
Dream Palace, 384 F.3d at 1013.
[2] The Supreme Court’s Alameda Books plurality clarified
the “substantial government interest” standard of the third
step of Renton, by prescribing the burden-shifting test we
have noted:
If plaintiffs fail to cast direct doubt on this rationale,
either by demonstrating that the municipality’s evi-
dence does not support its rationale or by furnishing
evidence that disputes the municipality’s factual
findings, the municipality meets the standard set
forth in Renton. If plaintiffs succeed in casting doubt
on a municipality’s rationale in either manner, the
burden shifts back to the municipality to supplement
the record with evidence renewing support for a the-
ory that justifies its ordinance.
Alameda Books, 535 U.S. at 438-39.
[3] Justice Kennedy’s concurrence slightly modifies this
burden-shifting framework by narrowing the universe of
allowable municipal rationales to support an ordinance. In
particular, “[a] city may not assert that it will reduce second-
ary effects by reducing speech in the same proportion.” Ala-
meda Books, 535 U.S. at 449 (Kennedy, J., concurring).
Justice Kennedy went on to elucidate what this means for the
present dispersal statute: “The claim . . . must be that [the]
ordinance will cause two businesses to split rather than one to
close, that the quantity of speech will be substantially undi-
minished, and that total secondary effects will be significantly
reduced.” Id. at 451.
ALAMEDA BOOKS v. LOS ANGELES 1755
In addition, the City raises a statute of limitations argu-
ment. The statute of limitations applicable to an action pursu-
ant to 42 U.S.C. § 1983 is the personal injury statute of
limitations of the state in which the cause of action arose. See
Wallace v. Kato, 549 U.S. 384, 387 (2007); DeGrassi v. City
of Glendora, 207 F.3d 636, 644 (9th Cir. 2000). The Califor-
nia limitations period applicable in this case is one year. See
Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004).8
III. Discussion
A. Vanita Spaulding’s Second Declaration
As a threshold issue, we do not upset the district court’s
decision to strike Vanita Spaulding’s declaration pursuant to
Federal Rule of Evidence 403, Exclusion of Relevant Evi-
dence on Grounds of Prejudice, Confusion, or Waste of Time,
and Federal Rule of Evidence 702, Testimony by Experts,
because the court did not abuse its discretion in doing so.
The district court properly perceived that allowing Spauld-
ing’s testimony as to the viability of stand-alone adult enter-
tainment arcades would confuse the issues under Fed. R.
Evid. 403 because it is based on evidence of the profitability
of adult arcades only when combined with an adult bookstore.
Alameda Books, 2008 U.S. Dist. LEXIS 108860, at *40-41.
Similarly, the court properly excluded her declaration under
Fed. R. Evid. 702 in view of her unsupported assumption of
a relationship between the current profitability of adult
arcades and their viability as free-standing units. See, e.g.,
McGlinchy v. Shell Chem. Co., 845 F.2d 802, 806-07 (9th Cir.
8
Although the California personal injury statute of limitations was
extended to two years in 2003, see 2002 Cal. Legis. Serv. Ch. 448 (S.B.
688) (West), Cal. Civ. Proc. Code § 335.1, an extension of the California
statute of limitations does not apply to claims under 42 U.S.C. § 1983
already barred. Maldonado, 370 F.3d at 955. If the plaintiffs filed their
complaint untimely in 1995, the extension of the limitations period in
2003 would not redeem it.
1756 ALAMEDA BOOKS v. LOS ANGELES
1988). Finally, the district court properly observed that
Spaulding had no experience or familiarity with the adult
entertainment industry. Therefore, excluding Spaulding’s sec-
ond declaration was a permissible exercise of the district
court’s discretion over the admissibility of evidence.9
B. Step Two of the Alameda Books Framework: Casting
Doubt
The district court erred, however, by granting summary
judgment at the second step of the Alameda Books analysis
based on the Andrus and Hinckley declarations, because that
court treated these declarations as “actual and convincing”
enough to justify summary judgment despite their obvious
and important shortcomings, and because the court did not
consider the declarants’ facial bias. To provide context for
this holding, it is instructive to review how we have dealt with
similar adult-entertainment cases reaching this stage of the
Alameda Books framework.
[4] Although we have interpreted the Supreme Court’s
Alameda Books decision on several occasions, we have yet to
hold that a plaintiff has succeeded in “casting doubt” on the
city’s evidence or rationale. It emerges from these cases that
to succeed in “casting doubt” on a city’s evidence or ratio-
nale, a plaintiff must do more than point to a municipality’s
lack of empirical evidence, Ctr. For Fair Pub. Policy, 336
F.3d at 1168, or challenge the methodology of the municipali-
ty’s evidence, Gammoh v. City of La Habra, 395 F.3d 1114,
1126-27 (9th Cir. 2005). When a municipality offers multiple
rationales in support of an ordinance, the plaintiff must
address each one. See Fantasyland Video, Inc. v. Cnty. of San
Diego, 505 F.3d 996, 1002 (9th Cir. 2007); World Wide Video
v. City of Spokane, 368 F.3d 1186, 1196 (9th Cir. 2004). The
9
Having so held, we do not address the court’s alternative reasoning for
excluding Vanita Spaulding’s second declaration pursuant to Fed. R. Evid.
703.
ALAMEDA BOOKS v. LOS ANGELES 1757
Sixth Circuit has explained that the plaintiffs bear a heavier
evidentiary burden in attempting to “cast doubt” than the
municipality does in justifying the ordinance at the outset, and
that the plaintiffs’ burden will not be carried by “anecdotal”
or “unsystematic” evidence. Richland Bookmart v. Knox
Cnty., 555 F.3d 512, 527-28 (6th Cir. 2009).
[5] An important common element in these cases with
respect to the second step of Alameda Books is that to suc-
cessfully “cast doubt” on a municipality’s rationale, a plaintiff
must offer not merely evidence, but “actual and convincing”
evidence. See Fantasyland Video, Inc., 505 F.3d at 1001 (cit-
ing Alameda Books, 535 U.S. at 439). Such evidence “must
do more than challenge the government’s rationale; it must
convincingly discredit the foundation upon which the govern-
ment’s justification rests.” Imaginary Images, Inc. v. Evans,
612 F.3d 736, 747 (4th Cir. 2010) (citing Giovani Carandola,
Ltd. v. Bason, 303 F.3d 507, 516 (4th Cir. 2002)).
[6] We are not satisfied that the plaintiffs’ evidence in this
case was “actual and convincing” enough to justify summary
judgment—and we emphasize that the procedural posture
here was summary judgment. The district court did not explic-
itly reach a contrary conclusion. Rather, the court dismissed
the lack of specific factual foundation in the declarations, did
not mention that they contain lengthy passages of identical
text and did not discuss at all the facial bias of the declarants.
Rather, the district court seemed to opine that no evidence
must yield to some evidence—no matter how superficially
frail and unexamined—to support a summary judgment.
[7] The district court’s failure to take into account as part
of its explicit analysis the bias of the plaintiffs’ witnesses was
a significant oversight.10 The credibility of witnesses is almost
10
In so observing, we are not deterred by the City’s failure to argue
articulately that the declarants are less “convincing” in view of their rela-
tionship to the plaintiffs. The potential bias problem, it seems to us, was
1758 ALAMEDA BOOKS v. LOS ANGELES
categorically a trial issue, see SEC v. M & A West, Inc., 538
F.3d 1043, 1054-55 (9th Cir. 2008), which means that, if bias
is an evident factor, summary judgment is not generally indi-
cated. The existence of credibility issues on material ques-
tions means that plaintiffs cannot short-circuit the “actual and
convincing” language of Alameda Books and its progeny by
seeking to have their case resolved at summary judgment. See
Anderson, 477 U.S. at 254 (“[I]n ruling on a motion for sum-
mary judgment, the judge must view the evidence presented
through the prism of the substantive evidentiary burden.”). If
this “actual and convincing” language is to be meaningful, the
district court must consider whether the plaintiffs have com-
plied with it before resolving the case in their favor. This
means considering inter alia the patent biases of the plain-
tiffs’ witnesses, since evidently biased testimony is not gener-
ally convincing. See United States v. Abel, 469 U.S. 45, 52
(1984). Here, the extent to which the Andrus and Hinckley
declarations are “convincing” is diminished by their obvious
self-interest: one declarant is the vice-president of a party to
this litigation, and the other is the president of a Southern Cal-
ifornia company that installs adult arcades, including those
owned by the plaintiff. The content of the declarations strikes
us as plausible, but the sources are necessarily suspect.
Moreover, as the City has argued, the Andrus and Hinckley
declarations actually establish very little. Neither declarant
offers any empirical data in support of his conclusion. Their
testimony amounts to a conclusory assertion that they work in
the industry, and we should take them at their word that adult
arcades could not survive as stand-alone businesses because
they would be perceived as too “seedy.” We do not see any
support, other than the ipse dixit of the declarants, for the
obvious — even if not advanced articulately by the City. The district court
was aware of, and in fact recited in its memorandum, the close relationship
between the plaintiffs and their witnesses. The court was thus required to
consider this prominent problem in weighing the plaintiffs’ evidence.
ALAMEDA BOOKS v. LOS ANGELES 1759
asserted relationship between the seediness of an adult enter-
tainment venue and its ability to stay in business. This lack of
substantiation is more problematic when viewed in the con-
text of the arcades’ profitability, as demonstrated in Vanita
Spaulding’s financial analysis. The Spaulding analysis
showed the arcades to be profitable in their present forms, a
relevant step in a more in-depth examination of their perfor-
mance in isolation.
[8] Viewing the evidence in the light most favorable to the
City, the plaintiffs’ two declarations are weakened by their
not insignificant verbatim repetition and are affected by obvi-
ous bias. The district court should have at least recognized the
bias problem in determining whether they successfully “cast
doubt” on the City’s rationale for its Ordinance. At trial, the
frailties of this evidence and its conformity to the “actual and
convincing” standard of the Alameda Books framework pres-
ent an issue of material fact that might be examined, but sum-
mary judgment is not indicated.11
C. Statute of Limitations
Finally, we must turn briefly to the City’s argument that the
plaintiffs filed suit untimely under the one-year California
statute of limitations. This argument is readily disposed of by
the City’s waiver. A statute of limitations is subject to waiver,
including by a government defendant in a § 1983 case. See,
e.g., Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 696-97
(9th Cir. 2003) (assuming that a waiver by a government
defendant in a § 1983 case is possible, although not finding
waiver under the circumstances). Here, the City did not argue
the statute of limitations in its May 31, 2007 motion for sum-
11
Although the parties submitted cross-motions for summary judgment,
this does not preclude us from finding that the case cannot be adjudicated
without a trial. See United States v. Fred A. Arnold, Inc., 573 F.2d 605,
606 (9th Cir. 1978). We feel all the less obliged to provide for summary
adjudication given the important public issues involved in the case.
1760 ALAMEDA BOOKS v. LOS ANGELES
mary judgment, and the district court’s opinion does not
address it.12 There may also have been waiver at an earlier
point, but this May 2007 waiver was the latest and clearest.
We REVERSE the district court’s grant of summary judg-
ment in favor of the plaintiffs, and REMAND this case for
further proceedings.
12
The City raised the statute of limitations before the district court, and
suffered an adverse ruling in a January 11, 1998 order denying both par-
ties’ motions for summary judgment. The court ruled that “[b]ecause of
the continuing nature of First Amendment injuries, the Court rejects the
City’s statute of limitations defense.” The City apparently did not appeal
from this determination, and we did not address it in our first encounter
with the case. It was not among the questions for which the Supreme
Court granted certiorari, and the Supreme Court accordingly did not con-
sider it.