                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 26 2014

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



                            FOR THE NINTH CIRCUIT


SAFARI CLUB INTERNATIONAL and                    No. 14-55113
JOAN WHIPPLE, as Successor-In-
Interest,                                        D.C. No. 8:13-cv-01989-JVS-AN

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

LAWRENCE P. RUDOLPH, Dr.,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                     Argued and Submitted November 17, 2014
                               Pasadena, California

Before: KLEINFELD and WARDLAW, Circuit Judges, and PONSOR, Senior
District Judge.**

       Safari Club International (“SCI”) and Joan Whipple, successor-in-interest to

John Whipple, appeal the district court’s denial of their application for preliminary

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
injunctive relief. In that application, they sought to enjoin Dr. Lawrence P.

Rudolph from disseminating a video he made—unbeknownst to John Whipple—of

a lunch conversation between the two on February 20, 2013. We have jurisdiction

pursuant to 28 U.S.C.§ 1292(a)(1), and we affirm.

      We disagree with Rudolph’s contention that this appeal is moot. Rudolph

contends that because he already posted the video on YouTube, dissemination of

the video has already occurred. However, unlike in In Defense of Animals v. U.S.

Dept. of Interior, 648 F.3d 1012 (9th Cir. 2011) (per curiam), the case on which

Rudolph relies, there remains activity to be enjoined. For example, Rudolph could

be required to remove the YouTube post, and discontinue any further efforts to

disseminate the video. That Rudolph “has no control over, or even knowledge of,

other copies that may have been shared or disseminated,” does not change this

result; his conduct may be enjoined, and further dissemination of the video by

Rudolph may be prevented.

      Turning to the merits of this appeal, the district court did not abuse its

discretion in denying SCI and Whipple’s application for a preliminary injunction.

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1157 (9th Cir. 2007). SCI

and Whipple failed to establish a likelihood of success on the merits of their claim

arising under Cal. Pen. Code § 632(a), a likelihood of irreparable harm if injunctive


                                           2
relief were not granted, that the balance of the hardships tipped in their favor, and

that an injunction would be in the public interest. Winter v. Natural Resources

Defense Council, Inc., 555 U.S. 7, 20 (2008). First, while SCI and Whipple may

be able to show at trial that they had an objectively reasonable expectation of

privacy for their restaurant conversation, the matter is not so clear that, applying

the deferential standard of review appropriate to a preliminary injunction appeal,

we may override the district court. “A preliminary injunction is not a preliminary

adjudication on the merits.” Barahona-Gomez v. Reno, 167 F.3d 1228, 1234 (9th

Cir. 1999). Second, SCI and Whipple neither identify any particular irreparable

harms which they contend they will suffer without injunctive relief, nor

demonstrate that the balance of the equities tips in their favor. Caribbean Marine

Servs. Co., Inc., v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988); Stormans, Inc. v.

Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009), quoting L.A. Mem’l Coliseum

Comm’n v. Nat’l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980). Instead,

they rely solely on their argument that the video was made in violation of § 632(a)

to support their claim that the second and third Winter factors favor them. Finally,

SCI and Whipple fail to demonstrate that the public interest would be served by

injunctive relief, Stormans, 586 F.3d at 1138-39; as with the prior two factors, their




                                           3
argument is premised on the video having been made in violation of § 632(a), the

likelihood of which they have failed to demonstrate.

      AFFIRMED.




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