KRISHNA LUNCH OF SOUTHERN CALIFORNIA, INC., a California nonprofit religious corporation v. MICHAEL J. BECK, Administrative Vice Chancellor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISHNA LUNCH OF SOUTHERN
CALIFORNIA, INC., a California nonprofit
religious corporation,
Plaintiff-Appellant,
v.
MICHAEL J. BECK, Administrative Vice
Chancellor,
Defendant-Appellee,
and
MONROE GORDEN, Jr., Vice Chancellor
of Student Affairs; et al.,
Defendants.
No. 23-55072
D.C. No.
2:22-cv-08265-DSF-PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted September 15, 2023
Pasadena, California
Before: SCHROEDER, FRIEDLAND, and MILLER, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
SEP 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Krishna Lunch, a nonprofit religious organization, appeals the district
court’s denial of its motion for a preliminary injunction. It had asked the court to
require the University of California, Los Angeles (“UCLA”) to allow Krishna
Lunch to promote Krishna consciousness by serving vegetarian lunches and
speaking to students on the campus without being subject to the four-day-per-
quarter restriction and $500 daily fee associated with the use of Bruin Plaza. We
review the denial of a motion for a preliminary injunction for abuse of discretion,
American Beverage Association v. City & County of San Francisco, 916 F.3d 749,
754 (9th Cir. 2019) (en banc), and we affirm.
Even assuming that Krishna Lunch could persuade us to overlook its failure
to raise in its opening brief a challenge to the district court’s conclusion that the
conduct here is not expressive, and even assuming that the conduct is expressive,
Krishna Lunch still did not establish that it is likely to succeed on the merits of its
First Amendment challenge, or that there are serious questions going to the merits.
See Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008); All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). The parties agree that the
relevant forum here is Bruin Plaza. The level of protection accorded to speech on
government property depends on the nature of the forum—whether it is a
traditional public forum, designated public forum, or nonpublic forum (which
includes the category of “limited public fora”). See Ariz. Life Coal. Inc. v. Stanton,

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515 F.3d 956, 968-69 (9th Cir. 2008); Seattle Mideast Awareness Campaign v.
King Cnty., 781 F.3d 489, 496 n.2 (9th Cir. 2015).
Krishna Lunch has not demonstrated any likelihood of establishing that
Bruin Plaza is a traditional public forum. See ACLU of Nevada v. City of Las
Vegas, 333 F.3d 1092, 1100-01 (9th Cir. 2003) (looking at (1) the “actual use and
purposes of the property,” (2) “the area’s physical characteristics,” and (3) the
“traditional or historic use of both the property in question and other similar
properties” to determine whether a site is a traditional public forum). Although
Bruin Plaza may superficially resemble traditionally recognized public fora like
town squares, Krishna Lunch presents no evidence that Bruin Plaza is either freely
accessible to the public or designed to serve the public at large. UCLA restricts
access by non-university-affiliates after midnight, and Krishna Lunch has not
pointed to any evidence suggesting that outside speakers use Bruin Plaza without a
permit. UCLA has explained that it restricts external groups’ use of the Plaza to
prioritize use by student groups and the campus community. Moreover, the
Plaza’s location in the center of campus separates it from surrounding public fora,
and its distinctive features (e.g., the presence of a statue of UCLA’s mascot and the
unique design of the Plaza’s pavement) seem to indicate to the public that they
have reached “some special type of enclave.” United States v. Grace, 461 U.S.
171, 180 (1983). Krishna Lunch also does not point to any historic use of the

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Plaza as a traditional public forum or any case holding that university quads are
traditionally public fora for non-university-affiliates.
Further, Krishna Lunch has not shown any likelihood of establishing that
Bruin Plaza is a designated public forum. To determine whether the government
has created a public forum by intentionally opening a nontraditional forum for
public discourse, courts look to “the terms of any policy . . . adopted to govern
access to the forum,” the implementation of that policy, and “the nature of the
government property at issue” based on whether it is “designed for and dedicated
to expressive activities.” Seattle Mideast, 781 F.3d at 496-97 (last passage quoting
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802–03
(1985)). Use of Bruin Plaza by the public for expressive activities of the nature
desired by Krishna Lunch requires advance permission and the payment of a fee.
Such policies are inconsistent with governmental intent to open its property to
“indiscriminate use by . . . the general public,” as would be suggestive of a
designated public forum. See, e.g., id. at 497 (quoting Hills v. Scottsdale Unified
Sch. Dist. No. 48, 329 F.3d 1044, 1050 (9th Cir. 2003)); Faith Ctr. Church
Evangelistic Ministries v. Glover, 480 F.3d 891, 909 (9th Cir. 2007), abrogated on
other grounds by Winter, 555 U.S. at 22. And Krishna Lunch has not contended
that UCLA’s policies are unenforced or inconsistently applied. Finally, although
Bruin Plaza may in some ways be conducive to free expression, and although

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UCLA promotes free speech on its grounds generally, UCLA has not dedicated the
Plaza to expressive activity. To the contrary, it has imposed restrictions to closely
monitor the space and ensure it serves the student body. The district court
therefore did not err in concluding that UCLA intended to grant only “selective
access” and that Bruin Plaza is likely a limited public forum. Seattle Mideast, 781
F.3d at 497.
The four-day-per-quarter reservation and $500-per-day fee are likely
constitutional restrictions on speech in limited public fora. See id. at 499,501
(holding that restrictions must be “‘reasonable in light of the purpose served by the
forum[,]’ . . . based on a standard that is definite and objective[,]” and viewpoint
neutral (quoting Cornelius, 473 U.S. at 806)). Both restrictions promote orderly
management of limited space to prioritize use by members of the university
community. The restrictions are clear-cut, involving no subjectivity or discretion.
And nothing in the record suggests they discriminate based on viewpoint.
Because Krishna Lunch has not shown a likelihood that UCLA’s restrictions
on its use of Bruin Plaza violate the First Amendment or even a serious question as
to the restrictions’ constitutionality, we hold that the district court did not abuse its
discretion in denying the preliminary injunction.
AFFIRMED.

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