                                                                                FILED
                             NOT FOR PUBLICATION                                 FEB 06 2014

                                                                             MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT

TOLLIS, INC.; EYEFULL, INC.,                        No. 12-57008

               Plaintiffs - Appellants,             D.C. No. 5:94-cv-00246-RT-BQR

  v.
                                                    MEMORANDUM*
COUNTY OF SAN BERNARDINO,

               Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                  Robert J. Timlin, Senior District Judge, Presiding

                             Submitted February 4, 2014**
                                Pasadena, California

Before: SILVERMAN and HURWITZ, Circuit Judges, and VINSON, Senior District
Judge.***

       Tollis, Inc. and Eyefull, Inc. (collectively “plaintiffs”) appeal from district court

orders denying their applications for a temporary restraining order, a preliminary


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable C. Roger Vinson, Senior District Judge for the U.S.
District Court for the Northern District of Florida, sitting by designation.
injunction, and Federal Rule of Civil Procedure 60(b) relief.

      1. The County did not violate the settlement agreement or the implied duty of

good faith and fair dealing because the agreement does not require the County to

identify a suitable location of an adult-oriented business. See Waller v. Truck Ins.

Exch., Inc., 900 P.2d 619, 627 (Cal. 1995) (“[I]ntent is to be inferred, if possible,

solely from the written provisions of the contract.”); Foley v. Interactive Data Corp.,

765 P.2d 373, 394 (Cal. 1988) (“The covenant of good faith is read into contracts in

order to protect the express covenants or promises of the contract . . . .”).

      2. The agreement did not impose an unconstitutional condition. The County

had a legitimate interest in settling plaintiffs’ constitutional claims. That interest, in

turn, had a close nexus with the right waived—the plaintiffs’ ability to litigate further

their claims. See Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1399

(9th Cir. 1991).

      3. Claim preclusion bars plaintiffs’ First Amendment claims. The parties and

claims are identical to those in the 2002 action, the district court had jurisdiction to

enter the consent decree, and the consent decree was a final judgment. See Cell

Therapeutics, Inc. v. Lash Grp., Inc., 586 F.3d 1204, 1211–12 (9th Cir. 2009).

      AFFIRMED.




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