FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALAMEDA BOOKS, INC., AND 

HIGHLAND BOOKS, INC., a

No. 09-55367 California corporation,

D.C. No. Plaintiffs-Appellees,  2:95-CV-7771-DDP

v. (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
COUNSEL

Clyde DeWitt and Cathy E. Crosson, Law Offices of Clyde

DeWitt, for the plaintiffs-appellees.

Carmen A. Trutanich, City Attorney, Tayo A. Popoola, Deputy 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 summary 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 judg1742 ALAMEDA BOOKS v. LOS ANGELES
ment on the issue whether the plaintiffs had presented “actual

and convincing” evidence “casting doubt” on the City’s rationale 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 proliferation 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. determined 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] Hollywood 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

1Consistent with prior opinions in this litigation, we adopt the linguistic

convention of the City Ordinance when discussing the subject matter the

Ordinance regulates. 

ALAMEDA BOOKS v. LOS ANGELES 1743
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 consideration, 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 paraphernalia.” 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 Ordinance 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 businesses 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

2The two plaintiffs were merged in 2002 into a single corporation, Beverly 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). 

1744 ALAMEDA BOOKS v. LOS ANGELES
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 further asserted that “[t]he classification of certain adult entertainment activities as separate businesses . . . is subject to a

[heightened] standard of review because the City applies these

3The 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 litigation included a permanent injunction against the enforcement of the Ordinance against the Topanga Press plaintiffs. The City settled with

additional adult entertainment business defendants in 1995, before the

present case began. 

ALAMEDA BOOKS v. LOS ANGELES 1745
definitions only to businesses that engage in protected

speech.” Id. at 20. The district court determined that the Ordinance 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. Alameda 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. Alameda 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 businesses.

Justice O’Connor’s plurality opinion reaffirmed the threepart framework established in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), for determining the legality

under the First Amendment of restrictions on adult entertainment businesses. Alameda Books, 535 U.S. at 433. The Court

then prescribed a three-part burden-shifting test for determin1746 ALAMEDA BOOKS v. LOS ANGELES
ing whether a regulation meets the third step4

 of the Renton

test, which requires the restriction to serve a substantial government interest. The burden-shifting framework provides

that after a municipality satisfies its burden of supplying evidence 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 operations in a single establishment will lead to increased undesirable 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 Ordinance, which satisfied the first step of the new Alameda

Books burden-shifting framework. Id. at 439, 442.

Justice Kennedy wrote separately in concurrence with Justice O’Connor’s plurality opinion. Because he expressed a

conditional agreement with the plurality, his narrower reasoning 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)).

4The 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. 

ALAMEDA BOOKS v. LOS ANGELES 1747
Most important for our purposes, Justice Kennedy’s concurrence provided that “a city must advance some basis to

show that its regulation has the purpose and effect of suppressing 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 concurrence 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 justification 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 briefing and discovery until certain other Ninth Circuit cases interpreting 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’ crossmotions for summary judgment. The court’s decision thoroughly and meticulously discusses the history of the case and

other relevant case law before reaching the merits. In considering the parties’ summary judgment motions, the district

1748 ALAMEDA BOOKS v. LOS ANGELES
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 valuation 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 conclusion 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 physical 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 standalone 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

5Vanita Spaulding’s first declaration, which the district court did not

strike, addresses the existence of alternative avenues for viewing adult

entertainment. 

ALAMEDA BOOKS v. LOS ANGELES 1749
visit a free-standing arcade business because she did not purport 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 statistics 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 disagrees.” 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 profitable, 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 plaintiffs’ two witnesses, William Andrus and Rick Hinckley. William 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 accommodated 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 Alameda Books and Highland Books, and Hinckley was person1750 ALAMEDA BOOKS v. LOS ANGELES
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 merchandise 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 standalone adult arcade would not be viable. The content of the

declarations is strikingly similar, and certain important passages 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 theatres, which have become all but extinct because of

that problem [or “reason”], namely, that they are perceived 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 prerecorded adult videotapes became more widely available 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 passage and dealing with the increasingly “couples-oriented”

ALAMEDA BOOKS v. LOS ANGELES 1751
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 businesses at issue in this case and their knowledge of the industry, 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,

6As 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. 

1752 ALAMEDA BOOKS v. LOS ANGELES
Defendant now bears the burden to present some evidence 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 Declaration, which reviews the revenue and expenses generated 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 Municipal 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 constitutionality 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 substan7

See Ctr. for Fair Pub. Policy, 336 F.3d at 1164 (“Because five members 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].”). 

ALAMEDA BOOKS v. LOS ANGELES 1753
tial government interest, and whether reasonable

alternative avenues of communication remain available. 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 evidence 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 theory 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 secondary effects by reducing speech in the same proportion.” Alameda 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 undiminished, and that total secondary effects will be significantly

reduced.” Id. at 451.

1754 ALAMEDA BOOKS v. LOS ANGELES
In addition, the City raises a statute of limitations argument. The statute of limitations applicable to an action pursuant 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 California 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 Evidence 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 Spaulding’s testimony as to the viability of stand-alone adult entertainment 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.

8Although 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. 

ALAMEDA BOOKS v. LOS ANGELES 1755
1988). Finally, the district court properly observed that

Spaulding had no experience or familiarity with the adult

entertainment industry. Therefore, excluding Spaulding’s second 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 rationale, 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 municipality’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

9Having so held, we do not address the court’s alternative reasoning for

excluding Vanita Spaulding’s second declaration pursuant to Fed. R. Evid.

703. 

1756 ALAMEDA BOOKS v. LOS ANGELES
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 successfully “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 (citing 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 government’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 explicitly 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

10In so observing, we are not deterred by the City’s failure to argue

articulately that the declarants are less “convincing” in view of their relationship to the plaintiffs. The potential bias problem, it seems to us, was

ALAMEDA BOOKS v. LOS ANGELES 1757
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 indicated. The existence of credibility issues on material questions 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 summary 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 complied with it before resolving the case in their favor. This

means considering inter alia the patent biases of the plaintiffs’ witnesses, since evidently biased testimony is not generally 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 California 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. 

1758 ALAMEDA BOOKS v. LOS ANGELES
asserted relationship between the seediness of an adult entertainment venue and its ability to stay in business. This lack of

substantiation is more problematic when viewed in the context 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 performance 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 obvious 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 present an issue of material fact that might be examined, but summary 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 sum11Although 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. 

ALAMEDA BOOKS v. LOS ANGELES 1759
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 judgment in favor of the plaintiffs, and REMAND this case for

further proceedings.

12The City raised the statute of limitations before the district court, and

suffered an adverse ruling in a January 11, 1998 order denying both parties’ 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 consider it. 

1760 ALAMEDA BOOKS v. LOS ANGELES