WaveHuggers LLC et al v. Quintero

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
WAVEHUGGERS LLC and HELINA
BECK,
Plaintiffs,
v.
ARMANDO QUINTERO, in his official
capacity as Director of the California
Department of Parks and Recreation,
Defendant.
Case No.: 25-cv-2215-RSH-BJW
ORDER ON DEFENDANT’S
MOTION TO DISMISS
[ECF No. 10]
Before the Court is a motion to dismiss filed by defendant Armando Quintero, in his
official capacity as Director of the California Department of Parks and Recreation
(“CDPR”). ECF No. 10. Pursuant to Local Civil Rule 7.1(d)(1), the Court finds the motion
presented appropriate for resolution without oral argument. For the reasons below, the
Court grants in part and denies in part Defendant’s motion.
I. 	BACKGROUND
The instant action challenges the constitutionality of California Code of Regulations,
title 14, section 4331 (“Section 4331”) as it pertains to plaintiffs Helina Beck and
Wavehuggers LLC’s ability to offer paid surf lessons on California state beaches.
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A. 	Plaintiffs’ Allegations
Plaintiffs’ 	Amended 	Complaint 	alleges 	as 	follows. 	In 	2013, 	Beck 	formed
Wavehuggers, which provides year-round surfing lessons in San Diego County, Orange
County, and Los Angeles County. ECF No. 8 ¶¶ 38–39. Beck currently serves as the Chief
Executive Officer of Wavehuggers and is herself a professional surfing instructor. Id. ¶ 12.
Plaintiffs do not solicit business in person. Id. ¶ 42. Instead, Plaintiffs market their services
online and prospective students may book a lesson through Wavehuggers’ website. Id.
On several occasions since 2021, including as recently as March 2025, Beck inquired
with local State Parks officials about obtaining a permit, agreement, or concession contract
to provide surf lessons at Carlsbad, South Carlsbad, or Cardiff State Beaches. Id. ¶ 25. Each
inquiry was denied. Id.
In March 2025, Beck received a cease-and-desist letter from the CDPR. ECF No. 8-
1 at 2. The letter states, in relevant part:
It has been brought to our attention that you are offering Surf Lessons
within on [sic] California State Parks property at Pipes beach at San
Elijo in Cardiff, and North Ponto in Carlsbad. Under California Code
of Regulations, Title 14, Division 3, Chapter 1, Section 4331, no one
may solicit goods or services in a state park without a permit. Since you
do not hold a contract or permit to provide these services on state park
property, you must immediately cease and desist all commercial
activities. In addition, you must remove all advertisements of such
services from the internet or other sources.
Typically, the type of service you are providing may be provided
through a concession contract issued pursuant to California Public
Resources Code Section 5080 et. seq. You may contact San Diego
Coast District Office at SDCD.Concessions@parks.ca.gov to discuss
the possibility of receiving a concession contract to operate on San
Diego State Beaches.
Id. 	According to Plaintiffs, since approximately 2008, only two schools have held
agreements to provide paid surf lessons at these beaches and only one school currently
holds such an agreement. ECF No. 8 ¶¶ 22–23.
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B. 	Statutory and Regulatory Scheme
1. 	Overview
Section 4331 is promulgated by the CDPR pursuant to California Public Resources
Code section 5003. ECF No. 7-1 at 12; Cal. Pub. Res. Code § 5003; see Wilson v. Cook,
197 Cal. App. 3d 344, 349 (Ct. App. 1987) (“Section 4331 was enacted by the Department
pursuant to Public Resources Code section 5003 which authorizes the Department to
establish rules and regulations not inconsistent with law for the administration of the
property under its jurisdiction.”).
Under Section 4331:
No person shall solicit, sell, hawk, or peddle any goods, wares,
merchandise, services, liquids, or edibles for human consumption or
distribute circulars in any unit, except as permitted by the Department.
Such prohibition shall include sales activities that utilize park property
or facilities to complete the terms of sale or provide a service as a result
of the sale or that effect [sic] park operations, facility use or visitor
safety. Also included are sales activities which encroach on the sales
rights of a vendor authorized to sell such products, or services pursuant
to a concession contract with the Department.
Cal. Code Regs. tit. 14, § 4331. Carlsbad, South Carlsbad, and Cardiff State Beaches are
“units” covered by Section 4331. ECF No. 8 ¶ 20; ECF No. 10-1 at 14. “Concessions” are
defined by the CDPR as “private businesses operating under contract in state parks to
provide 	products 	and 	services 	designed 	to 	enhance 	or 	facilitate 	the 	park 	visitor’s
experience.” ECF No. 10-2 at 5. 1 Defendant’s position is that Section 4331 bars individuals
1 The Court grants Defendant’s unopposed request for the Court to take judicial notice
of: 	(1) 	a 	section 	of 	the 	CDPR’s 	website 	entitled 	“Questions 	and 	Answers 	about
Concessions”; and (2) the CDPR’s Concessions Annual Report for Fiscal Year 2022-2023.
ECF No. 10-2 at 2; see Freshpoint Atlanta, Inc. v. Haywood, No. 20-CV-1065-MMA-DTF,
2025 WL 2606626, at *2 (S.D. Cal. Sept. 9, 2025) (“The Court may take judicial notice of
information 	on 	government 	websites 	and 	‘official 	acts’ 	of 	government 	agencies.”)
(collecting cases); Chavez v. Allstate Northbrook Indem. Co., No. 22-CV-00166-AJB-
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from providing paid surf lessons on California state beaches unless they have first secured
a concession contract. See ECF No. 10-1 at 11.
2. 	Bidding Process for Concession Contracts
The California Public Resources Code “sets forth requirements for awarding
concession contracts in the state park system.” Unite Here Local 30 v. Dep’t of Parks &
Recreation, 194 Cal. App. 4th 1200, 1206 (Ct. App. 2011).
Section 5080.03 of the Public Resources Code permits the CDPR to “enter into
contracts 	with 	natural 	persons, 	corporations, 	partnerships, 	and 	associations 	for 	the
construction, maintenance, and operation of concessions within units of the state park
system.” Cal. Pub. Res. Code § 5080.03(a).
Under the Public Resources Code, the CDPR administers a bidding process for
concession contracts. Except as otherwise specified by statute, “all contracts authorizing
occupancy of any portion of the state park system for a period of more than three years shall
be awarded to the best responsible bidder.” Cal. Pub. Res. Code § 5080.05(a).
The Public Resources Code defines the “best responsible bidder” as follows:
“Best responsible bidder” means the bidder, as determined by specific
standards established by the department, that, as determined by the
department, will operate the concession (1) consistent with the contract,
(2) in a manner fully compatible with, and complementary to, the
characteristics, features, and theme of the unit in which the concession
will be operated, (3) in the best interests of the state and public, and (4)
in a manner that protects the state’s trademark and service mark rights
in the names associated with a state park venue and its historical,
cultural, and recreational resources.
Id. § 5080.05(b). As part of the bidding process, the CDPR prepares “an invitation to bid,
which shall include a summary of the terms and conditions of the concession sufficient to
DEB, 2025 WL 1757543, at *3 (S.D. Cal. June 25, 2025) (“The Court may take judicial
notice of public records and government documents available from reliable sources,
including government websites.”).
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enable persons to bid solely on the basis of rates to be paid to the state.” Id. § 5080.06.
Notice is given to the public and bids are thereafter submitted under seal. Id. §§ 5080.07;
5080.09.
A concession contract may be alternatively awarded through a request for proposal.
ECF No. 10-1 at 15; see Unite Here Local 30, 194 Cal. App. 4th at 1207 (“If the director
of [CDPR] determines it is in the best interest of the state, he or she may forgo the bidding
process and use instead an RFP.”). In such a case, the CDPR prepares a request for proposal
that must include “the terms and conditions of the concession sufficient to enable a person
or entity to submit a proposal for the operation of the concession on the basis of the best
benefit to the state.” Cal. Pub. Res. Code § 5080.23(b). The contract is then awarded to the
“best responsible person or entity.” Id. § 5080.23(a). The “best responsible person or entity
submitting a proposal” is defined under the Public Resources Code as “the person or entity
submitting a proposal, as determined by specific standards established by the department,
that will operate the concession in the best interests of the state and the public.” Id. §
5080.23(d).
C. 	Procedural Background
On August 27, 2025, Plaintiffs filed this lawsuit. ECF No. 1. On November 18, 2025,
Plaintiffs filed their Amended Complaint, the operative pleading in this case. ECF No. 8.
The Amended Complaint asserts two causes of action for: (1) violation of Plaintiffs’ First
Amendment right to free speech; and (2) violation of Plaintiffs’ Fourteenth Amendment
right to equal protection. Id. ¶¶ 43–60. On November 26, 2025, Defendant filed the instant
motion to dismiss. ECF No. 10. Plaintiffs filed an opposition and Defendant filed a reply.
ECF Nos., 11, 12.
II. 	LEGAL STANDARD
A. 	Lack of Subject Matter Jurisdiction under Rule 12(b)(1)
“Federal courts are courts of limited jurisdiction, possessing only that power
authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (internal
quotation marks omitted). Accordingly, it is “presumed that a cause lies outside this limited
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jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(internal citations omitted). A motion to dismiss for lack of standing is properly brought as
a challenge to the court’s subject matter jurisdiction under Rule 12(b)(1). Chandler v. State
Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121 (9th Cir. 2010).
B. 	Failure to State a Claim under Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.”
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he non-conclusory ‘factual content,’
and reasonable inferences from that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
The plausibility review is a “context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Pleading facts
“‘merely consistent with’ a defendant’s liability” falls short of a plausible entitlement to
relief. Id. at 678 (quoting Twombly, 550 U.S. at 557). “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged—but it has not shown—that the pleader is entitled to relief.” Id. (internal
quotation marks omitted). A court “accept[s] factual allegations in the complaint as true
and construe[s] the pleadings in the light most favorable to the nonmoving party.”
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the
other hand, a court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).
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III. 	ANALYSIS
A. 	Plaintiff Beck’s Standing
Defendant first moves to dismiss plaintiff Beck for lack of Article III standing. ECF
No. 10-1 at 17–19. Specifically, Defendant argues Beck lacks standing because she has not
alleged an injury to herself. Id. Plaintiffs respond the Amended Complaint sufficiently
alleges that, because Beck is herself a surf instructor, Section 4331’s regulations affect her
personally. ECF No. 11 at 11–14.
“The general rule applicable to federal court suits with multiple plaintiffs is that once
the court determines that one of the plaintiffs has standing, it need not decide the standing
of the others.” Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993); see Kaahumanu v.
Hawaii, 682 F.3d 789, 798 (9th Cir. 2012). In this case, Plaintiffs seek declaratory relief,
injunctive relief, and attorneys’ fees and costs. ECF No. 8 at 10–11. While Defendant
moves to dismiss Beck for lack of standing, Defendant does not challenge Wavehuggers’
standing to pursue the relief sought in Plaintiffs’ lawsuit. See ECF Nos. 10-1; 12. Under
these circumstances, the Court need not address Defendant’s standing arguments as to
plaintiff Beck. See Nat’l Ass’n of Optometrists & Opticians Lenscrafters, Inc. v. Brown,
567 F.3d 521, 523 (9th Cir. 2009) (“[I]n an injunctive case this court need not address
standing of each plaintiff if it concludes that one plaintiff has standing.”); see also
Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (“Only injunctive
relief is sought, and for that only one plaintiff with standing is required[.]”); Coal. on
Homelessness v. City & Cnty. of San Francisco, No. 22-CV-05502-DMR, 2023 WL
3637032, at *3 (N.D. Cal. May 23, 2023) (holding that under similar circumstances, “Ninth
Circuit law dictates that the court need not address Defendants’ standing arguments as to
the individual plaintiffs”).
B. 	First Amendment (Claim 1)
1. 	Scope of Plaintiffs’ First Amendment Challenge
In Claim 1 of the Amended Complaint, Plaintiffs allege that Section 4331:
(1) constitutes a content-based restriction of protected expression that suppresses Plaintiffs’
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speech in “educational, professional, and therapeutic contexts”; and (2) imposes an
unconstitutional prior restraint on speech. ECF No. 8 ¶¶ 46–47.
The Court first considers whether Plaintiffs assert a facial or as-applied First
Amendment challenge to Section 4331. See Doe v. Reed, 561 U.S. 186, 194 (2010) (“It is
important at the outset to define the scope of the challenge before us.”). The classification
of a challenge “as facial or as-applied affects the extent to which the invalidity of the
challenged law must be demonstrated and the corresponding ‘breadth of the remedy[.]’”
Bucklew v. Precythe, 587 U.S. 119, 138 (2019). “An as-applied challenge contends that the
law is unconstitutional as applied to the litigant’s particular speech activity, even though
the law may be capable of valid application to others.” Foti v. City of Menlo Park, 146 F.3d
629, 635 (9th Cir. 1998). In contrast, a facial challenge contends that a law is either
“unconstitutional in every conceivable application” or that “it seeks to prohibit such a broad
range of protected conduct that it is unconstitutionally overbroad.” Id.
Here, both Plaintiffs’ Amended Complaint and their briefing make clear that they
are asserting an as-applied challenge to Section 4331. In their Amended Complaint,
Plaintiffs seek to declare Section 4331 unconstitutional and enjoin its application only as
applied to their conduct. See ECF No. 8 at 10 (requesting a declaration that Section 4331
“as applied to Plaintiffs, violates the First and Fourteenth Amendments to the U.S.
Constitution” and an injunction “restraining Defendant and Defendant’s officers, agents,
affiliates, servants, successors, employees, and all other persons in active concert or
participation with Defendant from enforcing Cal. Code Regs. tit. 14, § 4331 against
Plaintiff”). Plaintiffs likewise characterize their First Amendment claim as as-applied in
their briefing. See ECF No. 11 at 22 (“In this as-applied case, the regulation is not
supported by a substantial governmental interest”) (emphasis added).
Because Plaintiffs raise an as-applied challenge, the Court views this case through
“the specific prism of [Plaintiffs’] expressive conduct”—the surf lessons Plaintiffs conduct
on state beaches. See Porter v. Gore, 354 F. Supp. 3d 1162, 1175 (S.D. Cal. 2018).
///
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2. 	First Amendment, Generally
“The First Amendment, made applicable to the states through the Due Process
Clause of the Fourteenth Amendment, provides: ‘[The States] shall make no law ...
abridging the freedom of speech.’” Meinecke v. City of Seattle, 99 F.4th 514, 521 (9th Cir.
2024) (quoting U.S. Const. amend. I); Lovell v. Griffin, 303 U.S. 444, 450 (1938)
(“Freedom of speech and freedom of the press, which are protected by the First
Amendment from infringement by Congress, are among the fundamental personal rights
and liberties which are protected by the Fourteenth Amendment from invasion by state
action.”). In the Ninth Circuit, courts typically assess a First Amendment claim in three
steps. First, a court must decide “whether the relevant speech is protected by the First
Amendment[.]” Meinecke, 99 F.4th at 521 (internal quotation marks omitted). Second, the
court “must identify the nature of the forum.” Id. Finally, the court “must assess whether
the justifications for exclusion from the relevant forum satisfy the requisite standard.” Id.;
see Kaahumanu, 682 F.3d at 798.
a. 	Whether Surf Lessons are Protected Speech
Based on the framework outlined above, the Court first considers whether teaching
surf lessons is speech protected under the First Amendment.
“[T]he First Amendment’s protections for speech encompass situations where a
teacher’s ‘speech to [students] imparts a ‘specific skill’ or communicates advice derived
from ‘specialized knowledge.’” Hubbard v. City of San Diego, 139 F.4th 843, 850 (9th Cir.
2025) (quoting Pac. Coast Horseshoeing Sch., Inc. v. Kirchmeyer, 961 F.3d 1062, 1069
(9th Cir. 2020)). Relatedly, “when there is a speaker who is willing to convey ...
information, state restriction[s] of the right to receive information produce actual injury
under the First Amendment.” Pac. Coast Horseshoeing Sch., 961 F.3d at 1069 (internal
quotation marks omitted).
Here, Defendant does not meaningfully dispute that the provision of surf lessons is
protected speech within the scope of the First Amendment. See ECF No. 10-1 at 20
(“Section 4331 is a constitutional restriction on commercial speech, including as applied
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to Plaintiffs and their commercial surf lessons.”). The Court therefore proceeds on the
understanding that Plaintiffs’ surf instruction constitutes protected speech, which is
consistent with precedent recognizing instruction in specialized skills to be protected
expression. See Hubbard, 139 F.4th at 847 (“Teaching yoga is protected speech.”); Pac.
Coast Horseshoeing Sch., Inc. v. Kirchmeyer, 961 F.3d 1062, 1069 (9th Cir. 2020)
(“[V]ocational training is speech protected by the First Amendment.”); see also Murchison
v. City of Newport Beach, California, No. 8:25-CV-00155-FWS-DFM, 2025 WL 1723167,
at *4 (C.D. Cal. May 28, 2025) (“Because the Ordinance restricts Plaintiff’s ability to
provide paid surfing and [stand-up paddleboarding] lessons, the court finds Plaintiff
adequately alleges that the Ordinance restricts Plaintiff’s speech.”).
b. 	Nature of the Forum
The Court next looks to the nature of the forum at issue. “The Supreme Court has
constructed an analytical framework known as ‘forum analysis’ for evaluating First
Amendment claims relating to speech on government property.” ACLU of Nev. v. City of
Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003). Under this approach, the Court looks to
whether the property at issue “is a traditional public forum, a designated public forum, or
a nonpublic forum in order to ascertain what level of scrutiny to apply to restrictions on
speech.” Id. at 1098. “A public forum is a place that has ‘traditionally been available for
public expression,’ such as public streets and parks.” PMG Int’l Div., L.L.C. v. Rumsfeld,
303 F.3d 1163, 1169 (9th Cir. 2002) (quoting Int’l Soc’y for Krishna Consciousness v. Lee,
505 U.S. 672, 678 (1992)). “A designated public forum is a nontraditional forum that the
government has opened for expressive activity by part or all of the public.” Children of the
Rosary v. City of Phx., 154 F.3d 972, 976 (9th Cir. 1998). “All other public property is
characterized as ‘nonpublic.’” PMG Int’l Div., 303 F.3d at 1170.
Here, Plaintiffs contend state beaches are traditional public forums. ECF No. 11 at
15. Defendant does not meaningfully address this point. See ECF No. 12. On the limited
record before it, the Court assumes for purposes of its analysis that the state beaches at
issue here are public forums. See Hubbard, 139 F.4th at 850 (“[T]he City’s shoreline
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parks are traditional public forums.”); Kaahumanu, 682 F.3d at 800 (assuming without
deciding that unencumbered state beaches in Hawaii are traditional public forums); see
also Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999) (holding an area
consisting of beach and sidewalk spaces to be a public forum).
c. 	Content-Based/Content-Neutral
Finally, the Court considers “whether the justifications for exclusion from the
relevant forum satisfy the requisite standard.” Cornelius v. NAACP Legal Def. & Educ.
Fund, 473 U.S. 788, 797 (1985). To determine the relevant standard, the Court must
examine whether Section 4331 is a content-based or content-neutral restriction. See Porter
v. Martinez, 64 F.4th 1112, 1121 (9th Cir. 2023) (“When considering a First Amendment
challenge to a law regulating expression in a public forum, we ask first whether the law
is content based or content neutral.”).
Plaintiffs contend Section 4331 constitutes a content-based restriction subject to
strict scrutiny. ECF No. 11 at 18. Alternatively, Plaintiffs argue that even if Section 4331
is deemed content-neutral, it is not a valid time, place and manner restriction. Id. at 17–28.
In contrast, Defendant argues that Section 4331 may be upheld under Central Hudson Gas
& Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) as a
valid restriction on commercial speech or as a content-neutral time, place, and manner
restriction. ECF No. 10-1 at 20–31.
“Government regulation of speech is content based if a law applies to particular
speech because of the topic discussed or the idea or message expressed.” Reed v. Town of
Gilbert, 576 U.S. 155, 163 (2015); see Recycle for Change v. City of Oakland, 856 F.3d
666, 670 (9th Cir. 2017) (“A content-based law is one that ‘target[s] speech based on its
communicative content’ or ‘applies to particular speech because of the topic discussed or
the idea or message expressed.’”) (quoting Reed, 576 U.S. at 163). “The principal inquiry
in determining content neutrality, in speech cases generally and in time, place, or manner
cases in particular, is whether the government has adopted a regulation of speech because
of disagreement with the message it conveys.” Honolulu Weekly, Inc. v. Harris, 298 F.3d
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1037, 1043 (9th Cir. 2002). 2
The Supreme Court’s decision in Heffron v. Int’l Soc’y for Krishna Consciousness,
452 U.S. 640 (1981) is instructive here. Haffron was directed to a regulation requiring that
“all persons, groups or firms which desire to sell, exhibit or distribute materials” at a state
fair do so only from fixed locations on the fairgrounds. 452 U.S. at 643–44. Despite the
fact that the regulation concerned sales and solicitations, Haffron held that the regulation
was content-neutral as it applied “evenhandedly to all who wish to distribute and sell
written materials or to solicit funds.” Id. at 649.
The Ninth Circuit’s decisions in 	Kaahumanu 	and 	Honolulu Weekly 	are also
instructive. In Kaahumanu, the Court of Appeals considered the constitutionality of the
State 	of 	Hawaii’s 	permit 	requirement 	for 	“commercial 	activities 	of 	any 	kind” 	on
encumbered Hawaiian public land. 682 F.3d at 793–94. Commercial activity was defined
by regulation as “the use of or activity on state land for which compensation is received by
any person for goods or services or both rendered to customers or participants in that use
or activity.” Id. at 794. The Court of Appeals held that the permitting regulations were
“content neutral” because the requirement to obtain a permit was triggered by the
commercial nature of the activity, not by the content of the speech. Id. at 805.
Similarly in Honolulu Weekly, the Court of Appeals considered the constitutionality
of an ordinance requiring publishers who wished to distribute their publications along
sidewalks in the Waikiki Special District to use one of two sets of newsracks—one
designated for free and another designated for paid publications. 298 F.3d at 1041. The
Court 	of 	Appeals 	held 	the 	ordinance 	was 	content-neutral 	as 	it 	set 	up 	“a 	system
2 Generally, courts “apply the most exacting form of review—strict scrutiny—to
determine the validity of a content-based restriction on speech.” IMDb.com Inc. v. Becerra,
962 F.3d 1111, 1121 (9th Cir. 2020). “But this is not an absolute rule, and some categories
of speech receive reduced protection.” Id.; see United States v. Swisher, 811 F.3d 299, 313
(9th Cir. 2016) (“Even if a challenged restriction is content-based, it is not necessarily
subject to strict scrutiny.”). One such category is commercial speech. Id. at 1121.
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that segregates publications into two classes based on whether or not the publisher charges
its readers, not on the content of the publications.” Id. at 1044.
Here, Section 4331 is most properly characterized as content-neutral. The regulation
applies to individuals who “solicit, sell, hawk, or peddle any goods, wares, merchandise,
services, liquids, or edibles for human consumption or distribute circulars in any unit,
except as permitted by the Department.” Cal. Code Regs. tit. 14, § 4331. As in the above
cases, this obligation to obtain a permit is triggered solely by the commercial nature of the
activity, not by any message or viewpoint expressed. There is no evidence that the State
adopted the regulation because of agreement or disagreement with the content of any
message. Indeed, as Plaintiffs themselves acknowledge, Section 4331 would not restrict
unpaid surf instruction or purely recreational surfing. ECF No. 8 ¶¶ 55–56; 11 at 24. As
the Ninth Circuit has reasoned: “not every regulation that turns on the content of speech in
the loosest sense is content based in the constitutional sense. A regulation may remain
content neutral despite touching on content to distinguish between classes or types of
speech—such as speech that constitutes solicitation.” Project Veritas v. Schmidt, 125 F.4th
929, 950 (9th Cir. 2025).
In sum, Section 4331 conditions the requirement to obtain a permit on the
commercial nature of the activity, rather than on the substance or viewpoint of any message
conveyed and is most properly understood as a content-neutral regulation.
d. 	Commercial Speech
The Court relatedly rejects Defendant’s argument that as applied to Plaintiffs,
Section 4331 regulates commercial speech. ECF No. 10-1 at 21 (“As applied to Plaintiffs’
particular circumstances, their speech fits the second and third factors” governing
commercial speech).
“Commercial speech is ‘usually defined as speech that does no more than propose a
commercial transaction.’” Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1115 (9th Cir.
2021) (quoting United States v. United Foods, 533 U.S. 405, 409 (2001)); Cent. Hudson,
447 U.S. at 561 (stating commercial speech is “expression related solely to the economic
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interests of the speaker and its audience”). Nevertheless, “courts view this definition [as]
just a starting point” and “instead try to give effect to a common-sense distinction between
commercial speech and other varieties of speech.” Id. at 1115.
In Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), the Supreme Court
identified three factors relevant to determining whether speech constitutes commercial
speech. Under Bolger, “[w]here the facts present a close question, ‘strong support’ that the
speech should be characterized as commercial speech is found where [1] the speech is an
advertisement, [2] the speech refers to a particular product, and [3] the speaker has an
economic motivation.” Hunt v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011) (citing
Bolger, 463 U.S. at 66–67).
Here, Plaintiffs allege they do not solicit business in-person, but instead market their
services online where prospective students may book a lesson. ECF No. 8 ¶ 42. As alleged,
by the time lessons are taking place, students have already agreed to enroll in them. The
surf lessons themselves therefore do not propose a commercial transaction. For these
reasons, the Court “need not reach the Bolger factors.” See IMDb.com, 962 F.3d at 1122.
Moreover, nothing in the record indicates that the surf lessons themselves were an
advertisement or referred to a particular product. And although Plaintiffs had a financial
interest in providing such lessons, “economic motive in itself is insufficient to characterize
[speech] as commercial[.]” Dex Media W., Inc. v. City of Seattle, 696 F.3d 952, 960 (9th
Cir. 2012).3
3 Regardless, the Central Hudson test is “substantially similar” to the time, place and
manner analysis that the Court applies below. See Valle Del Sol Inc. v. Whiting, 709 F.3d
808, 826 (9th Cir. 2013) (“[T]he test for commercial speech is substantially similar to the
application of the test for validity of time, place, and manner restrictions[.]”). Both are
intermediate levels of scrutiny. See Contest Promotions, LLC v. City & Cty. of S.F., 874
F.3d 597, 601 (9th Cir. 2017) (“Restrictions on commercial speech are subject to
intermediate scrutiny[.]”); Int’l Soc’y for Krishna Consciousness of Cal., Inc. v. City of
L.A., 764 F.3d 1044, 1049 (9th Cir. 2014) (holding that a time, place and manner test
embodies “an intermediate level of scrutiny.”).
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e. 	Time, Place and Manner
Having determined that Section 4331 constitutes a content-neutral restriction on
speech, the Court next determines whether it is a valid time, place and manner restriction.
“[T]he government in public fora may impose reasonable, content-neutral restrictions on
the time, place, or manner of protected speech so long as those limits are ‘narrowly tailored
to serve a significant governmental interest’ and ‘leave open ample alternative channels for
communication of the information.’” Krishna (LA), 764 F.3d at 1049 (quoting Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989)); Kaahumanu, 682 F.3d at 802–03
(“[R]easonable time, place, [and] manner restrictions on speech are permissible in a
traditional public forum.”) (internal quotation marks omitted). The Court analyzes each of
these requirements below.
i. 	Narrowly Tailored
“For a content-neutral time, place, or manner regulation to be narrowly tailored, it
must not burden substantially more speech than is necessary to further the government’s
legitimate interests.” McCullen v. Coakley, 573 U.S. 464, 486 (2014) (internal quotation
marks omitted). “Such a regulation, unlike a content-based restriction of speech, need not
be the least restrictive or least intrusive means of serving the government’s interests.” Id.
(internal quotation marks omitted). “But the government still may not regulate expression
in such a manner that a substantial portion of the burden on speech does not serve to
advance its goals.” Id. (internal quotation marks omitted).
Defendant asserts Section 4331 serves a significant governmental interest in
promoting the “safety and convenience of the general public in the use and enjoyment of,
and the enhancement of recreational and educational experiences at, units of the state park
system” and is narrowly tailored to further that interest through the issuance of concession
contracts that limit overcrowding, prevent commercial exploitation, and maintain the
natural character of state parks. ECF No. 10-1 at 23 (quoting Cal. Pub. Res. Code §
5080.03). Although Plaintiffs agree “in the abstract” that Defendant has an interest in
“protecting and properly managing park lands,” Plaintiffs contend Defendant has not met
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its burden of demonstrating that Section 4331 is narrowly tailored to address this interest.
ECF No. 11 at 23–26. In particular, Plaintiffs argue Defendant has offered no explanation
or evidence as to how Plaintiffs’ conduct—the provision of paid surf lessons—undermines
the State’s interests. Id. at 23–24. Plaintiffs further contend Defendant has not addressed
why less restrictive alternatives—such as designating specific areas of the beach or times
in which commercial instruction is restricted—would not adequately address these
interests. Id. at 24–26.
Here, the Court agrees that the government has a legitimate interest in regulating
commercial activity on public beaches. See Thomas v. Chi. Park Dist., 534 U.S. 316, 322,
(2002) (holding object of ordinance requiring individuals to obtain a permit before
conducting large-scale events at public parks was “not to exclude communication of a
particular content, but to coordinate multiple uses of limited space, to assure preservation
of the park facilities, to prevent uses that are dangerous, unlawful, or impermissible … and
to assure financial accountability for damage caused by the event”); Kaahumanu, 682 F.3d
at 803 (permit system “reasonably designed to minimize conflicting uses of limited beach
area and to conserve the physical resource of the beaches”); Stewart v. City & Cty. of S.F.,
Cal., 608 F. Supp. 3d 902, 914 (N.D. Cal. 2022) (“It is undisputed that the government has
a significant interest in regulating public places”).
Nevertheless, Defendant “bears the burden of showing that the remedy it has adopted
does not burden substantially more speech than is necessary to further” this legitimate
interest. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936,
948 (9th Cir. 2011). Rather than meaningfully responding to Plaintiffs’ arguments,
however, Defendant instead argues Plaintiffs have not pleaded facts “relating to the state
interests supporting Section 4331.” ECF No. 12 at 12. This misapprehends Defendant’s
burden. See Comite, 657 F.3d at 948.
Likewise, Defendant’s mere assertion that “restrictions on commercial activities in
state parks through concession contracts advance government interests in protecting the
parks for the use and enjoyment of park visitors” is, by itself, insufficient to meet its burden
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of showing that Section 4331 is narrowly tailored. ECF No. 10-1 at 24; see Turner Broad.
Sys. v. FCC, 512 U.S. 622, 664 (1994) (“When the Government defends a regulation on
speech as a means to redress past harms or prevent anticipated harms, it must do more than
simply posit the existence of the disease sought to be cured. It must demonstrate that the
recited harms are real, not merely conjectural, and that the regulation will in fact alleviate
these harms in a direct and material way.”) (internal quotation marks and citation omitted).
At this stage of these proceedings, based on the limited record before it, the Court
cannot conclude as a matter of law that Section 4331 is narrowly tailored. See Citizens for
Clean Gov’t v. City of San Diego, 474 F.3d 647, 653 (9th Cir. 2007) (reversing district
court’s denial of a preliminary injunction where district court’s “findings that the City's
ordinance furthered a sufficient government interest ... rested on hypothetical situations not
derived from any record evidence or governmental findings”); Murchison, 2025 WL
1723167, at *5 (“At this stage of the proceedings, the court cannot conclude that the
Ordinance was narrowly tailored. While Defendant raises legitimate government interests
such as public safety and welfare, Defendant fails to provide sufficient evidence or explain
how the Ordinance is narrowly tailored towards these interests.”); Dorsett v. City of San
Diego, No. 24-CV-00813-AJB-AHG, 2025 WL 591073, at *12 (S.D. Cal. Feb. 24, 2025)
(“At the motion to dismiss stage, accepting Plaintiffs’ allegations as true, and construing
all inferences in favor of Plaintiffs, without any evidence from the City proving otherwise,
the Court cannot conclude as a matter of law that the City’s expressive activity areas are
narrowly tailored.”); Porter, 354 F. Supp. 3d at 1176–79 (denying motion to dismiss where
defendant had not met its burden of demonstrating regulation was narrowly tailored).
ii. 	Open Ample, Alternative Channels
A valid time, place and manner regulation must also “leave open ample alternative
channels for communication.” Hoye v. City of Oakland, 653 F.3d 835, 844 (9th Cir. 2011).
“Several considerations are relevant to this analysis.” Long Beach Area Peace Network v.
City of Long Beach, 574 F.3d 1011, 1025 (9th Cir. 2009). “First, [a]n alternative is not
ample if the speaker is not permitted to reach the intended audience.” Id. (internal quotation
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marks omitted). “Second, if the location of the expressive activity is part of the expressive
message, alternative locations may not be adequate.” Id. “Third, [a court] consider[s] the
opportunity for spontaneity in determining whether alternatives are ample[.]” Id. “Fourth,
[a court] consider[s] the cost and convenience of alternatives.” Id.
Here, Defendant contends Section 4331 leaves open ample alternative channels for
communication as it applies only to surf lessons provided on a commercial basis on CDPR
“units,” leaving Plaintiffs and other businesses free to operate at other beaches throughout
California. ECF No. 10-1 at 27. Plaintiffs respond that the mere fact they may teach—or
may have previously taught—paid surf lessons outside of state beaches does not establish
that the regulation leaves open ample alternative channels of communication, particularly
as non-state beaches may impose their own restrictions. ECF No. 11 at 19.
On the present record, the Court cannot conclude as a matter of law that Section
4331 leaves open ample alternative channels for communication. There is no evidentiary
record, for example, as to the extent of beach areas covered by Section 4331 or the practical
feasibility of conducting commercial surf lessons at alternative locations. “Additional
factual development is required to determine whether the proposed alternative means of
communication are indeed adequate.” Venice Justice Comm. v. City of L.A., 205 F. Supp.
3d 1116, 1126 (C.D. Cal. 2016); see also Dorsett, 2025 WL 591073, at *12 (denying
motion to dismiss and reasoning that defendant’s arguments with respect to whether there
were ample alternative channels of communication “may be better suited following
discovery when the record is more fully developed”); NAACP v. City of San Jose, 562 F.
Supp. 3d 382, 400 (N.D. Cal. 2021) (“[O]n the present motion to dismiss for failure to state
a claim, the court has no evidentiary record before it, and thus does not have adequate
means of determining whether the challenged [regulation] was narrowly tailored or
whether it left open ample alternative channels for communication. That reason alone
warrants denial of defendants’ motion to dismiss.”).
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3. 	Conclusion
For the reasons stated above, the Court concludes Plaintiffs have sufficiently alleged
an as-applied First Amendment challenge to Section 4331 and DENIES Defendant’s
motion to dismiss Plaintiffs’ First Amendment claim. 4
C. 	Fourteenth Amendment (Claim 2)
In Claim 2 of the Amended Complaint, Plaintiffs allege that Section 4331 creates an
“arbitrary and irrational distinction” between paid and unpaid surf lessons on state beaches
in violation of Plaintiffs’ rights to equal protection under the Fourteenth Amendment. ECF
No. 8 ¶¶ 55–57. Plaintiffs characterize this as an as-applied challenge. ECF No. 11 at 30
(“And as alleged, it is unlikely that either concern can be supported in this as-applied case
… [I]n this as-applied case there are no ‘street peddlers and hawkers’ and the ‘charm and
beauty’ of state beaches is thus not at risk from disruption by them.”) (emphasis added).
1. 	Level of Scrutiny
“The Equal Protection Clause directs that all persons similarly circumstanced shall
be treated alike.” Plyler v. Doe, 457 U.S. 202, 216 (1982) (internal quotation marks
omitted). “In determining whether a statute, regulation, or ordinance violates the Equal
Protection Clause of the United States Constitution” the Court begins its analysis “by
determining the proper level of scrutiny to apply for review.” Honolulu Weekly, 298 F.3d
at 1047. The Court applies strict scrutiny “if the governmental enactment ‘targets a suspect
class or burdens the exercise of a fundamental right.’” Id. (quoting United States v.
4 Having found that Plaintiffs have plausibly alleged that Section 4331 constitutes an
invalid time, place, and manner restriction, the Court declines to address Plaintiffs’
alternative theory the regulation operates as an unconstitutional prior restraint. Notably,
Plaintiffs have not identified authority explaining how such an unbridled-discretion prior-
restraint theory is properly brought in the context of this as-applied challenge. See Epona,
Ltd. Liab. Co. v. Cty. of Ventura, 876 F.3d 1214, 1221–22 (9th Cir. 2017) (characterizing
plaintiff’s argument that an ordinance vested defendant with excessive discretion under the
First Amendment to be a facial challenge); Real v. City of Long Beach, 852 F.3d 929, 933–
34 (9th Cir. 2017) (same); Kaahumanu, 682 F.3d at 802 (same).
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Hancock, 231 F.3d 557, 565 (9th Cir. 2000)). “If the ordinance does not concern a suspect
or semi-suspect class or a fundamental right” the Court instead applies “rational basis
review and simply ask[s] whether the ordinance is rationally-related to a legitimate
governmental interest.” Id. (internal quotation marks omitted).
Here, Plaintiffs contend Section 4331 is a content-based regulation that infringes on
their fundamental rights to free speech under the First Amendment. ECF No. 11 at 28. This
Court has already determined, however, that Section 4331 is content-neutral. Accordingly,
the Court applies rational basis review. See Maldonado v. Morales, 556 F.3d 1037, 1048
(9th Cir. 2009) (“[S]trict scrutiny under the Equal Protection Clause is inappropriate where
a law regulating speech is content-neutral[.]”); Honolulu Weekly, 298 F.3d at 1048 (holding
strict scrutiny “not appropriate” for equal protection analysis where the court had already
determined the ordinance was content-neutral).
2. 	Rational Basis Review
Under rational basis review, “[a] law is presumed to be valid and will be sustained
under rational basis review if it is rationally related to a legitimate state interest.” Tingley
v. Ferguson, 47 F.4th 1055, 1077 (9th Cir. 2022) (internal quotation marks omitted). To
determine whether a statute or regulation can survive rational basis review, the Court
applies a “two-tiered inquiry.” Erotic Serv. Provider Legal Educ. & Research Project v.
Gascon, 880 F.3d 450, 457 (9th Cir. 2018). First, the Court “must determine whether the
challenged law has a legitimate purpose.” Id. Second, the Court addresses “whether the
challenged law promotes that purpose.” Id.
“Rational basis review is highly deferential to the government, allowing any
conceivable rational basis to suffice.” Id. The test “is not a license for courts to judge the
wisdom, fairness, or logic of legislative choices.” Heller v. Doe by Doe, 509 U.S. 312, 319
(1993) (internal quotation marks omitted). “Nor does it authorize the judiciary [to] sit as a
superlegislature to judge the wisdom or desirability of legislative policy determinations
made in areas that neither affect fundamental rights nor proceed along suspect lines.” Id.
(internal quotation marks omitted). “Where there are plausible reasons for [legislative]
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action, [a court’s] inquiry is at an end.” RUI One Corp. v. City of Berkeley, 371 F.3d 1137,
1154 (9th Cir. 2004) (internal quotation marks omitted).
Here, the CDPR plainly has a legitimate interest in regulating activity on public
beaches. Defendant argues Section 4331 is rationally related to the State’s asserted interests
because the permitting process: (1) moderates the number of individuals who can use
CDPR units at any one time; (2) minimizes conflicting uses of limited beach areas;
(3) conserves the physical resources of the beaches; (4) improves safety and aesthetics by
limiting capacity to safe levels; and (5) prevents over-commercialization. ECF No. 10-1 at
32. Plaintiffs concede it is “theoretically possible” that Section 4331 “could improve safety
on state beaches by limiting ‘over-commercialization,’” but argue Section 4331 cannot
survive rational basis review because Defendant has not offered evidence that paid surfing
lessons actually cause conflicting uses of state beaches or over-commercialization. ECF
No. 11 at 29–31. This argument misapprehends both Defendant’s burden and the applicable
standard.
“[T]he burden is on the [party] attacking the legislative arrangement to negative
every conceivable basis which might support it[.]” Heller, 509 U.S. at 320 (internal
quotation marks omitted). “Even in the context of a motion to dismiss, a plaintiff alleging
an equal protection violation must plead a claim that establishes that there is not any
reasonable 	conceivable 	state 	of 	facts 	that 	could 	provide 	a 	rational 	basis 	for 	the
classification.” Dairy v. Bonham, No. C-13-1518 EMC, 2013 WL 3829268, at *6 (N.D.
Cal. July 23, 2013) (internal quotation marks omitted). Rather than negating every
conceivable basis supporting Section 4331, Plaintiffs acknowledge Section 4331 could
advance the legitimate governmental interest of improving safety by limiting over
commercialization. ECF No. 11 at 30.
While Plaintiffs argue Defendant has not produced evidence that restricting paid surf
lessons would advance these interests, in a rational basis review, “a legislative choice is
not subject to courtroom factfinding and may be based on rational speculation unsupported
by evidence or empirical data.” FCC v. Beach Commc’ns, 508 U.S. 307, 315 (1993). The
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Court 	does 	not 	“require 	that 	the 	government’s 	action 	actually 	advance 	its 	stated
purposes, but merely look[s] to see whether the government could have had a legitimate
reason for acting as it did.” Wright v. Incline Vill. Gen. Improvement Dist., 665 F.3d 1128,
1141 (9th Cir. 2011). Even if the relationship between regulating paid surf lessons and the
asserted 	state 	interest 	was 	debatable 	here, 	the 	Court 	“must 	accept 	a 	legislature’s
generalizations even when there is an imperfect fit between means and ends; mathematical
nicet’ is not required.” Taylor v. Rancho Santa Barbara, 206 F.3d 932, 935 (9th Cir. 2000)
(internal quotation marks omitted).
For these reasons, the Court GRANTS Defendant’s motion to dismiss Plaintiffs’
Fourteenth Amendment claim WITHOUT LEAVE TO AMEND. 5
IV. 	CONCLUSION
The Court GRANTS IN PART and DENIES IN PART Defendant’s motion as
follows:
1. 	The Court DENIES Defendant’s motion to dismiss Claim 1.
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5 “If a complaint is dismissed for failure to state a claim, leave to amend should be
granted unless the court determines that the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency.” DeSoto v. Yellow Freight Sys.,
957 F.2d 655, 658 (9th Cir. 1992) (internal quotation marks omitted). “A district court does
not err in denying leave to amend where the amendment would be futile.” Id. Here,
however, the defect in Plaintiffs’ Fourteenth Amendment equal protection claim cannot
be cured by further amendment. See McGuire v. Roseville Joint Union High Sch. Dist., No.
23-16169, 2026 WL 36171, at *3 (9th Cir. Jan. 6, 2026) (affirming district court’s dismissal
of equal protection claim without leave to amend); Laws. For Fair Reciprocal Admission
v. United States, 141 F.4th 1056, 1074 (9th Cir. 2025) (same).
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2. 	The Court GRANTS Defendant’s motion to dismiss Claim 2 WITHOUT
LEAVE TO AMEND.
IT IS SO ORDERED.
Dated: February 24, 2026
____________________
Hon. Robert S. Huie
United States District Judge
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