1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRYAN BRATT, Case No.: 24-CV-1295 JLS (BLM)
12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART AS MOOT DEFENDANT CITY OF 14 CARLSBAD POLICE DEPARTMENT, CARLSBAD’S MOTION TO CARLSBAD COMMUNITY THEATRE, 15 DISMISS AND DEFENDANT and DOES 1-100, PATRONS OF THE ARTS 16 Defendants. FOUNDATION DBA CARLSBAD 17 COMMUNITY THEATER’S MOTION TO DISMISS 18
19 (ECF Nos. 20, 21)
20 21 Presently before the Court are Defendant City of Carlsbad’s (the “City”) Motion to 22 Dismiss Plaintiff’s Second Amended Complaint (“City Mot.,” ECF No. 21) and Defendant 23 Patrons of the Arts Foundation dba Carlsbad Community Theater’s (“CCT”) Motion to 24 Dismiss Second Amended Complaint (“CCT Mot.,” ECF No. 20). Plaintiff Bryan Bratt 25 (“Plaintiff”) filed two oppositions, one to the City’s Motion (“City Opp’n,” ECF No. 23), 26 and one to CCT’s Motion (“CCT Opp’n,” ECF No. 22). Both City and CCT (collectively, 27 “Defendants”) filed replies. See ECF No. 26 (“City Reply”); ECF No. 28 (“CCT Reply”). 28 / / / 1 Having carefully considered Plaintiff’s Second Amended Complaint (“SAC,” ECF 2 No. 19), the Parties’ arguments, and the law, the Court now GRANTS IN PART AND 3 DENIES IN PART AS MOOT the Motions. 4 BACKGROUND 5 I. Procedural Background 6 Plaintiff, proceeding pro se, initially filed his Complaint in state court on June 17, 7 2024, naming Carlsbad Police Department (“Carlsbad PD”), CCT, and DOES 1–100 as 8 Defendants. See ECF No. 1-3 (“Compl.”). The City subsequently removed the case, 9 asserting federal question jurisdiction based on Plaintiff’s 42 U.S.C. § 1983 claim and 10 supplemental jurisdiction as to his remaining causes of action.1 ECF No. 1 (“Not. of 11 Removal”) at 1–2. Plaintiff’s Complaint alleged that he “planned a peaceful protest” after 12 CCT made a decision that “unfairly cast [Plaintiff] in a negative light.” Compl. ¶ 2. On 13 June 24—just days before the scheduled protest— Carlsbad PD allegedly sent Plaintiff a 14 “cease and desist directive.” Id. ¶ 17. The directive purportedly ordered Plaintiff not to go 15 through with the protest and threatened him with legal consequences. Id. When Plaintiff 16 asked Carlsbad PD about the directive, “the department informed him that they had no 17 record of the incident.” Id. ¶ 18. Paradoxically, however, Carlsbad PD was able to “discuss 18 the specifics of the situation when pressed.” Id. Later, representatives from Carlsbad PD 19 supposedly told Plaintiff that “they typically do not issue cease and desist orders.” Id. ¶ 21. 20 Plaintiff was never afforded a hearing to contest the basis of the directive. Id. ¶ 20. Plaintiff 21 alleges the foregoing events led to his “social and professional ostracism,” thereby harming 22 him emotionally and economically. See id. ¶ 22. 23 The City then filed a Motion to Dismiss, see ECF No. 2, which the Court granted on 24 August 19, 2024, see ECF No. 6. Specifically, the Court found that Plaintiff’s state law 25 claims were subject to dismissal, as Plaintiff failed to plead compliance with the 26 presentment and timing requirements of the California Government Claims Act. ECF 27
28 1 No. 6 at 4–6. Next, the Court found that Plaintiff’s § 1983 claim was subject to dismissal, 2 as it was untimely, and that Plaintiff failed to sufficiently plead municipal liability. Id. at 3 6–10. However, in light of Plaintiff’s pro se status, the Court granted him an opportunity 4 to amend his Complaint. Id. at 10–11. 5 CCT then filed a Motion to Dismiss Plaintiff’s Complaint. ECF No. 7. Plaintiff 6 filed his First Amended Complaint (“FAC,” ECF No. 8) thereafter. Consequently, the 7 Court denied CCT’s Motion as moot in light of the newly amended complaint. See ECF 8 No. 9. The City and CCT then each filed the Motions to Dismiss Plaintiff’s FAC. See 9 ECF Nos. 10, 11. On June 25, 2025, the Court granted in part and denied in part the 10 Motions and dismissed Plaintiff’s FAC with leave to amend. See ECF No. 18 (“Order”). 11 The Court again found that Plaintiff insufficiently pled municipal liability against the City, 12 Title VII violations against CCT, and retaliation against all Defendants. Order at 7–11. 13 The Court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state 14 law claims—thus denying as moot Defendants’ Motions in this regard. Id. at 12. The 15 Court allowed Plaintiff leave to amend. Id. at 13. 16 On July 7, 2025, Plaintiff filed his SAC alleging eleven causes of action: (1) 42 17 U.S.C. § 1983 First and Fourteenth Amendments against City; (2) Monell Liability against 18 City; (3) Retaliation against all Defendants; (4) Intentional Infliction of Emotional Distress 19 (“IIED”) against all Defendants; (5) Negligent Infliction of Emotional Distress (“NIED”) 20 against all Defendants; (6) Abuse of Process against all Defendants; (7) Discrimination in 21 Violation of California Law against CCT; (8) Bane Act against all Defendants; (9) Gross 22 Negligence against all Defendants; (10) Monell Failure to Train Liability against City; and 23 (11) Breach of Implied Contract against CCT. See generally SAC. Defendants filed the 24 current Motions in response. See City Mot.; see also CCT Mot. 25 II. Factual Allegations in the SAC 26 Plaintiff’s SAC alleges that on or about June 2019, he “engaged in constitutionally 27 protected advocacy related to perceived discriminatory practices by [CCT].” SAC ¶ 16. 28 He purportedly planned “to peacefully protest decisions by CCT that he believed unjustly 1 excluded or vilified him.” Id. Then, on or about July 30, 2019, Plaintiff received a phone 2 call “from an individual identifying themselves as a representative of” Carlsbad PD, 3 informing him that he must “cease and desist from proceeding with the planned protest and 4 was warned that he would face legal consequences if he did not comply.” Id. ¶ 17. This, 5 and alleged harassment from “theatre representatives,” caused him to cancel the planned 6 protest, id. ¶ 18, yet when he later contacted Carlsbad PD and inquired about the “cease 7 and desist directive” (“Directive”), he was informed “the department had no record of such 8 an order” and “that cease and desist directives were not standard practice,” id. ¶ 19. Despite 9 such representation, Carlsbad PD officials, “when pressed further, . . . acknowledged the 10 incident and discussed specific details.” Id. ¶ 19. Plaintiff alleges the foregoing events led 11 to his ostracization within his professional and social communities, resulting in a loss of 12 employment at both Uber and SeaWorld, “due to stigmatization associated with the 13 ongoing perception that he was under police scrutiny or subject to legal restraint or of poor 14 moral character that was a result of unclear circumstances.” Id. ¶ 23. 15 Plaintiff alleges he “has experienced a pattern of retaliation and social exclusion 16 resulting from the directive and Defendants’ sustained informal enforcement”—including 17 “repeated indirect communications through CCT affiliates, warnings to avoid certain 18 events, and Plaintiff being asked to leave or denied access to public or community spaces.” 19 Id. ¶ 20. Plaintiff alleges that in December 2023, Plaintiff was “again blocked from 20 attending or participating in theater activities” due to “the same continuing defamatory and 21 coercive narrative originating from the 2019 incident.” Id. ¶ 24. And in May 2025, he 22 “uncovered evidence that the original cease and desist directive was likely never formally 23 authorized or recorded and may have been issued fraudulently.” Id. ¶ 25. Plaintiff found 24 that “no documentation existed and that the City of Carlsbad had not acknowledged or 25 reviewed the incident,” id., and that “Carlsbad PD failed to notify city authorities of the 26 issuance of the directive” leading to “nearly five years” of “reputation-based exclusion, 27 and community-wide stigmatization,” id. ¶ 26. 28 / / / 1 Plaintiff alleges that his “permanent state of reputational suspicion” has caused him 2 fear and helplessness as well as hindering his ability to network and participate in the 3 performing arts industry. Id. ¶¶ 27–29. Finally, Plaintiff alleges that on or about August 4 28, 2024, he submitted formal notice of a claim to the City of Carlsbad. Id. ¶ 31. Plaintiff 5 seeks compensatory damages, punitive damages, declaratory judgments that his 6 constitutional rights were violated, an injunction prohibiting Defendants from further 7 violations of the law, and attorneys’ fees. Id. at 30–33. 8 LEGAL STANDARD 9 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 10 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” To 11 survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as 12 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 13 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 14 facially plausible when the facts pled “allow[] the court to draw the reasonable inference 15 that the defendant is liable for the misconduct alleged.” Id. That is not to say that the claim 16 must be probable, but there must be “more than a sheer possibility that a defendant has 17 acted unlawfully.” Id. Facts “‘merely consistent with’ a defendant’s liability” fall short of 18 a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). 19 Though this plausibility standard “does not require ‘detailed factual 20 allegations,’ . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully- 21 harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). In other words, a 22 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 23 enhancement.’” Id. (alteration in original) (quoting Twombly, 550 U.S. at 557). Put 24 differently, “a formulaic recitation of the elements of a cause of action will not do.” 25 Twombly, 550 U.S. at 555. 26 Review under Rule 12(b)(6) requires a context-specific analysis involving the 27 Court’s “judicial experience and common sense.” Iqbal, 556 U.S. at 679. In performing 28 that analysis, “a district court must accept as true all facts alleged in the complaint, and 1 draw all reasonable inferences in favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 2 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019). “[W]here the well-pleaded facts do not 3 permit the court to infer more than the mere possibility of misconduct, the complaint has 4 alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. 5 at 679 (second alternation in original). If a complaint does not survive Rule 12(b)(6), a 6 court grants leave to amend unless it determines that no modified contention “consistent 7 with the challenged pleading could . . . possibly cure the deficiency.” Schreiber Distrib. 8 Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 9 ANALYSIS 10 Plaintiff’s SAC appears to allege four federal claims against the City, and one against 11 CCT. As to the City, Plaintiff’s SAC alleges a § 1983 claim in his First Cause of Action, 12 a Monell claim in his Second Cause of Action, a § 1983 First Amendment retaliation claim 13 in his Third Cause of Action, and a failure to train claim in his Tenth Cause of Action.2 As 14 for CCT, Plaintiff alleges federal retaliation in his Third Cause of Action. Plaintiff’s 15 remaining claims assert violations of state law. The Court first addresses whether Plaintiff 16 has stated a federal claim against either the City or CCT. 17 I. The SAC’s Federal Claims 18 A. First, Second, and Tenth Causes of Action 19 Plaintiff first alleges § 1983 claims on the basis that Carlsbad PD violated his First 20 Amendment right to free speech by issuing the Directive, and his Fourteenth Amendment 21 right to due process by failing to provide him an opportunity to contest the Directive. SAC 22 ¶¶ 34–42. Plaintiff also alleges a Monell claim under a custom or policy theory and under 23 a failure to train theory. Id. ¶¶ 45–50; 107–114. As before, the City argues Plaintiff fails 24 to state a § 1983 claim under Monell v. N.Y.C. Dep’t of Soc. Servs., 436 US 658, 690 (1978). 25 See City Mot. at 6–8. The Court agrees. 26 27 28 2 The Court notes that Causes of Action Two and Ten are nearly identical and both allege a failure to train, 1 Section 1983 “is not itself a source of substantive rights, but merely provides a 2 method for vindicating federal rights elsewhere conferred.” Graham v. Conner, 490 U.S. 3 386, 393–94 (1989) (internal quotation marks and citations omitted). To state a claim 4 under § 1983, a plaintiff must allege both that (1) the defendant was acting under color of 5 state law at the time the complained of act was committed, and (2) the defendant’s conduct 6 deprived the plaintiff of a right secured by the Constitution and laws of the United States. 7 Tsao v. Desert Palace, 698 F.3d 1128, 1138 (9th Cir. 2012) (citing Chudacoff v. Univ. 8 Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011)). 9 A municipal entity may not be liable under § 1983 unless it “implements or executes 10 a policy statement, ordinance, regulation, or decision officially adopted and promulgated 11 by that body’s officers,” or has a “governmental ‘custom’ even though such a custom has 12 not received formal approval through the body’s official [decision-making] channels” that 13 causes a constitutional harm. Monell, 436 U.S. at 690–91. To state a Monell claim, a 14 plaintiff must allege: (1) the plaintiff was deprived of a federal constitutional right; (2) the 15 local government entity had a policy; (3) the policy amounted to a deliberate indifference 16 to the plaintiff's constitutional right; and (4) the policy was the moving force behind the 17 constitutional violation. See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 18 2011). “Municipalities may be liable under § 1983 for constitutional injuries pursuant to 19 (1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or 20 discipline; or (4) a decision or act by a final policymaker.” Horton by Horton v. City of 21 Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019) (citing Monell, 435 U.S. at 693–95). 22 To “withstand a motion to dismiss for failure to state a claim, a Monell claim must 23 consist of more than mere ‘formulaic recitations of the existence of unlawful policies, 24 conducts[,] or habits.’” Bedford v. City of Hayward, No. 3:12-cv-00294-JCS, 25 2012 WL 4901434, at *12 (N.D. Cal. Oct. 15, 2012) (citation omitted). “Monell 26 allegations must be [pled] with specificity. . . .” Galindo v. City of San Mateo, No. 16-cv- 27 03651-EMC, 2016 WL 7116927, at *5 (N.D. Cal. Dec. 7, 2016). 28 / / / 1 1. Custom, Practice, or Policy 2 Plaintiff first attempts to establish the City’s liability based on a custom, practice, or 3 policy. SAC ¶ 45. In his First Cause of Action, Plaintiff alleges that the City has a policy 4 of permitting its officers to issue informal cease and desist directives, failing to document 5 communications that restrict constitutionally protected activity, and continuing to 6 informally enforce the directive even after denying its formal existence. Id. 7 Allegations of an unconstitutional policy or custom will be sufficient where they 8 “(1) identify the challenged policy/custom; (2) explain how the policy/custom is deficient; 9 (3) explain how the policy/custom caused the plaintiff harm; and (4) reflect how the 10 policy/custom amounted to deliberate indifference.” Herd v. Cnty. of San Bernardino, 311 11 F. Supp. 3d 1157, 1167 (C.D. Cal. 2018) (quoting Young v. City of Visalia, 687 F. Supp. 12 2d 1141, 1163 (E.D. Cal 2009)). This policy must be the proximate cause of the § 1983 13 injury. Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996) (citing Mann v. 14 City of Tucson, Dep’t of Police, 782 F.2d 790, 793 (9th Cir. 1986)). 15 Here, Plaintiff’s SAC does not point to any specific policy or custom by the City 16 that amounted to deliberate indifference of his constitutional rights and caused 17 constitutional harm. Plaintiff did not allege any other instances of the asserted violations 18 by the City—beyond the alleged violation experienced by Plaintiff himself. “The Ninth 19 Circuit has consistently held that a single incident is not enough to establish a municipality 20 has a policy or custom.” Rouchon v. Cnty. of Los Angeles, No. 18-CV-10029-VAP-MAAx, 21 2019 WL 8755120, at *4 (C.D. Cal. Nov. 26, 2019) (citing Davis v. Ellensburg, 869 F.2d 22 1230, 1233 (9th Cir. 1989) (“A plaintiff cannot prove the existence of a municipal policy 23 or custom based solely on the occurrence of a single incident of unconstitutional action by 24 a [non-policymaking] employee.”)). Plaintiff states himself in his SAC that “cease and 25 desist directives were not standard practice” of Carlsbad PD and has presented no evidence 26 that this conduct has occurred to anyone else. SAC ¶ 19. Therefore, Plaintiff has failed to 27 plead a custom, policy, or practice of the City. 28 / / / 1 2. Failure to Train 2 Plaintiff also attempts to establish the City’s liability based on a Monell failure to 3 train or supervise claim. SAC ¶¶ 45–50; 107–114. Plaintiff’s Second and Tenth Causes 4 of Action both include these allegations. Id. 5 Plaintiff must sufficiently allege that City’s failure to train amounted to “deliberate 6 indifference to the rights of persons with whom the police come into contact.” City of 7 Canton v. Harris, 489 U.S. 378, 388 (1989). A failure to train must reflect a “deliberate or 8 conscious choice by a municipality.” Id. at 389 (internal quotation marks omitted). 9 “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal 10 actor disregarded a known or obvious consequence of his action.” Connick v. Thompson, 11 563 U.S. 51, 61 (2011) (internal quotation marks omitted) (quoting Bd. of Cnty. Com’rs of 12 Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)). When city policymakers are “on actual 13 or constructive notice that a particular omission in their training program causes city 14 employees to violate citizens’ constitutional rights,” the city may be found deliberately 15 indifferent if they chose to retain that program. Id. To demonstrate that failure to train 16 amounts to deliberate indifference, it is “ordinarily necessary to demonstrate a pattern of 17 similar constitutional violations by untrained employees.” Scalia v. Cnty. of Kern, 308 F. 18 Supp. 3d. 1064, 1078 (E.D. Cal. 2018) (internal quotation marks omitted) (quoting 19 Connick, 563 U.S. at 62). Deliberate indifference may be shown through evidence of a 20 “failure to investigate and discipline employees in the face of widespread constitutional 21 violations.” Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 803 (9th Cir. 2018) (citation 22 omitted). 23 Plaintiff’s failure to train allegations are conclusory and not sufficiently specific to 24 support a Monell claim. Plaintiff alleges Carlsbad PD “inadequately train[ed] and 25 supervis[ed] its employees,” in “the constitutional limits of law enforcement activity with 26 respect to citizen protests and free expression,” issuing legal directives affecting First 27 Amendment rights, treatment of people suspected of disruptive public conduct, and internal 28 accountability and verification of “informal or undocumented orders such as ‘cease and 1 desist directives.’” SAC ¶ 109. Plaintiff further alleges that this is not a one-time mistake 2 “but the result of an ongoing pattern or custom of informally suppressing dissent, 3 selectively enforcing police power, and failing to correct improper actions even after being 4 notified.” Id. ¶ 111. Plaintiff also states that this failure to provide training “constituted 5 deliberate indifference to the rights of those with whom Carlsbad PD officers interact,” 6 were a proximate cause of his deprivation of constitutional rights, and caused him damages. 7 Id. ¶ 112. 8 Again, the Court finds that these allegations are “formulaic recitations of the 9 existence of unlawful policies, conducts[,] or habits,” Bedford, 2012 WL 4901434, at *12 10 (citation omitted), and “of the elements of a cause of action,” Twombly, 550 U.S. at 555, 11 which are insufficient to state a Monell claim. Further, while Plaintiff did provide 12 additional details regarding allegedly what training the officers lacked, Plaintiff again fails 13 to allege any other instances of the failure to train beyond the facts at issue. See Hyde v. 14 City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022) (“While deliberate indifference can be 15 inferred from a single incident when the unconstitutional consequences of failing to train 16 are patently obvious . . . an inadequate training policy itself cannot be inferred from a single 17 incident.” (internal citations omitted)); Hendrix v. City of San Diego, 20-CV-45 TWR 18 (NLS), 2021 WL 3892671, at *8 (S.D. Cal. Aug. 11, 2021) (dismissing a failure to train 19 claim because plaintiff did not allege similar constitutional violations to the one at issue). 20 Accordingly, the Court agrees with the City that Plaintiff has failed to state a § 1983 21 claim under Monell, including under a failure to train theory. Accordingly, the Court 22 GRANTS the City’s Motion to Dismiss Plaintiff’s First, Second, and Tenth Causes of 23 Action. 24 B. Third Cause of Action—42 U.S.C. 1983 Retaliation 25 Plaintiff then alleges a § 1983 First Amendment Retaliation claim against all 26 Defendants. SAC ¶¶ 51–58. 27 In his Third cause of action, while unclear, it seems that Plaintiff alleges that the 28 City retaliated against Plaintiff by issuing a “fraudulent cease and desist directive” in 1 response to his organizing and preparation to protest. Id. ¶¶ 53–54. As discussed above, a 2 municipal entity may not be liable under § 1983 unless it “implements or executes a policy 3 statement, ordinance, regulation, or decision officially adopted and promulgated by that 4 body’s officers,” or has a “governmental ‘custom’ even though such a custom has not 5 received formal approval through the body’s official [decision-making] channels” that 6 causes a constitutional harm. Monell, 436 U.S. at 690–91. Plaintiff does not allege any 7 policy or custom of the City or that this alleged conduct has occurred more than just in this 8 case. Therefore, City’s Motion to Dismiss the Third Cause of Action is GRANTED. 9 As to CCT, Plaintiff alleges that CCT “support[ed] a fraudulent cease and desist 10 directive,” intimidated his romantic partner into severing ties with him, blacklisted him 11 from venues and productions, and enabled ongoing ostracism and reputational damage 12 because “they were motivated at least in substantial part, by Plaintiff’s protected speech 13 and protest planning.” SAC ¶¶ 54–55. CCT argues that they cannot be liable under a 14 § 1983 claim because Plaintiff has failed to allege facts demonstrating CCT, “a private 15 non-governmental entity,” acted under color of state law. CCT Mot. at 6. 16 A defendant may act under color of state law where her conduct “satisfies the state- 17 action requirement of the Fourteenth Amendment,” i.e., “the defendant’s alleged 18 infringement of the plaintiff’s federal rights is ‘fairly attributable to the State.’” West v. 19 Atkins, 487 U.S. 42, 49 (1988) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 20 (1982)). In determining this, (a) “the deprivation must be caused by the exercise of some 21 right or privilege created by the State or by a rule of conduct imposed by the state or by a 22 person for whom the State is responsible,” and (b) “the party charged with the deprivation 23 must be a person who may fairly be said to be a state actor,” either because she is a state 24 official, because she has acted together with or has obtained significant aid from state 25 officials, or because her conduct is otherwise chargeable to the state. Lugar, 457 U.S. at 26 937. 27 Plaintiff does not allege that CCT relates to the City or State in any way. Plaintiff 28 merely alleges that CCT “support[ed]” the fraudulent issuance of the Directive—but does 1 not allege that CCT was involved at all with the Directive or how they allegedly 2 “support[ed]” the City. SAC ¶ 54. There are no allegations that CCT’s decision to exclude 3 Plaintiff from theater events and otherwise engage in reputational-harming activities is 4 “fairly attributable to the State.” Barrios v. Antelope Valley Chevrolet Inc., No. 23-CV- 5 10476-AB-JC, 2024 WL 4404494, at *3 (C.D. Cal. Aug. 1, 2024) (finding no state action 6 of a private party where the only allegations are that the private company complained to 7 the police). Further, Plaintiff fails to address any arguments regarding State Action in his 8 Opposition.3 See generally CCT Opp’n. 9 Therefore, CCT’s Motion to Dismiss as to the Third Cause of Action is 10 GRANTED. 11 C. Conclusion 12 The Court finds Plaintiff’s SAC fails to plead sufficient allegations to state a federal 13 claim against either the City or CCT. In light of this finding, the Court declines to reach 14 the City and CCT’s arguments that Plaintiff’s claims are barred by the applicable statutes 15 of limitations. The City and CCT’s Motions to Dismiss are thus GRANTED, and the 16 Court DISMISSES Plaintiff’s First, Second, Third, and Tenth Causes of Action. 17 II. The FAC’s State Law Claims 18 The Court next addresses Plaintiff’s remaining state law claims. “Federal courts are 19 courts of limited jurisdiction, possessing only that power authorized by Constitution and 20 statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (internal quotation marks and citation 21 omitted). As such, federal courts have jurisdiction over civil actions in which (1) a federal 22 question exists, or (2) complete diversity of citizenship between the parties exists and the 23 amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332. 24 / / / 25 26 3 Plaintiff’s Opposition to CCT’s Motion incorrectly numbers the causes of action, addresses causes of action not pled, confuses which causes of action were against which Defendant, and fails to address CCT’s 27 State Action argument. See CCT Opp’n. The Court may treat arguments raised in a motion to dismiss 28 that are not addressed in the opposition as admitted. See Kelly v. Cnty. of Orange, No. 24-CV-933-JVS- 1 As this case was removed based on federal question jurisdiction, see Not. of 2 Removal, the now-dismissed federal law claims provide the sole bases for federal subject 3 matter jurisdiction in this case. While a federal court may exercise supplemental 4 jurisdiction over state law claims “that are so related to claims in the action within [the 5 court’s] original jurisdiction that they form part of the same case or controversy under 6 Article III of the United States Constitution,” 28 U.S.C. § 1367(a), a court may decline to 7 exercise supplemental jurisdiction where it “has dismissed all claims over which it has 8 original jurisdiction,” id. § 1367(c)(3). See also Albingia Versicherungs A.G. v. Schenker 9 Int’l, Inc., 344 F.3d 931, 937–38 (9th Cir. 2003) (Section 1367(c) grants federal courts the 10 discretion to dismiss state law claims when all federal claims have been dismissed). A 11 court, in considering whether to retain supplemental jurisdiction, should consider factors 12 such as “economy, convenience, fairness, and comity.” Acri v. Varian Assocs., 114 F.3d 13 999, 1001 (9th Cir. 1997) (en banc) (internal quotation marks omitted). However, “in the 14 usual case in which all federal-law claims are eliminated before trial, the balance of 15 factors . . . will point toward declining to exercise jurisdiction over the remaining state law 16 claims.” Exec. Software N. Am., Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1553 n.4 (9th Cir. 17 1994) (emphasis omitted), overruled on other grounds by, Cal. Dep’t of Water Res. v. 18 Powerex Corp., 533 F.3d 1087 (9th Cir. 2008). 19 Here, the balance of factors weighs in favor of dismissing Plaintiff’s remaining state 20 law claims. This case has yet to proceed beyond the pleadings, and thus few judicial 21 resources are wasted by dismissing the case at this stage. Further, dismissal promotes 22 comity by allowing the California courts to interpret state law concerning the state law 23 claims in the first instance. Thus, the Court declines to exercise supplemental jurisdiction 24 over the remaining state law claims. See Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) 25 (courts may decline to exercise supplemental jurisdiction over related state law claims 26 under subsection (c)(3) once it has dismissed all claims over which it has original 27 jurisdiction). 28 / / / 1 Accordingly, because the Court declines to exercise supplemental jurisdiction as to 2 || Plaintiffs state law claims, Plaintiff's state law claims against the City and CCT are 3 || DISMISSED. Consequently, the Court DENIES the City and CCT’s respective Motions 4 Dismiss as to Plaintiff's state law claims as MOOT. 5 Leave to Amend 6 The final consideration is whether Plaintiff should again be granted leave to amend. 7 || Leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). 8 ||But while the rule should be interpreted liberally, leave should not be granted 9 |}automatically. Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990). In 10 || determining whether to grant leave to amend, trial courts should consider various factors, 11 |/including bad faith, undue delay, prejudice to the opposing party, futility of amendment, 12 || and whether the party has previously amended. Foman v. Davis, 371 U.S. 178, 182 (1962). 13 Applying the Foman factors here, the Court declines to grant Plaintiff leave to amend 14 || for a third time. The Court finds that “it is clear that granting leave to amend would [be] 15 || futile.’ Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 16 |} (9th Cir. 2004). Thus, Plaintiff's claims are dismissed without leave to amend. 17 CONCLUSION 18 For the reasons above, the Court GRANTS the City’s (ECF No. 21) and CCT’s 19 ||(ECF No. 20) Motions as to Plaintiff's federal claims and DENIES AS MOOT the City’s 20 |}and CCT’s Motions as to Plaintiffs state law claims. The Court thus DISMISSES 21 || Plaintiff's Second Amended Complaint WITHOUT LEAVE TO AMEND. As this 22 concludes the litigation in this matter, the Clerk SHALL close the file. 23 IT IS SO ORDERED. 24 || Dated: February 12, 2026 . L .
26 United States District Judge 27 28