1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Gilda Ryan et al., Case No.: 21cv1076-JO-KSC
12 Plaintiffs, ORDER GRANTING MOTIONS TO 13 v. DISMISS 14 County of Imperial et al, 15 Defendants. 16 17 18 Plaintiffs Gilda and Joseph Ryan filed a civil rights action under 42 U.S.C. § 1983, 19 against the County of Imperial; the Palo Verde County Water District (a sub-agency of 20 County of Imperial); various individuals associated with these entities in their official and 21 individual capacities; private citizens who attended an Imperial County Board of 22 Supervisor’s meeting; and a local newspaper and associated employees who published a 23 news article about the Board meeting. 24 Defendants County of Imperial (“County”) and its officials and employees Blanca 25 Acosta, Raymond Castillo, Esperanza Colio-Warren, Adam Crook, Clifton Erro, Jesus 26 Escobar, Michael Kelley, Ryan Kelley, Raymond Loera, Rene McNish, Fred Miramontes, 27 Luis Plancarte, Tony Rouhotas, Jr., and Katherine Turner (“Individual County 28 Defendants”) (collectively, “Imperial County Defendants”) filed a motion to dismiss for 1 failure to state a claim. Dkt. 67. Defendants Patsy Calvert, Thomas Calvert, and Anne 2 Marie Delcastillo, private citizens who were present at the same Imperial County Board of 3 Supervisors meeting that Plaintiffs attended (collectively, “Private Defendants”), filed a 4 motion to dismiss for failure to state a claim. Dkt. 101. Defendants Yuma Sun 5 Incorporated, Uriel Avendano, and Lisa Reilly, the newspaper and employees who 6 published a news article about the Imperial County Board of Supervisors meeting 7 (collectively, “Media Defendants”), filed a motion to dismiss for failure to state a claim. 8 Dkt. 88.2 For the reasons discussed below, the Court GRANTS the defendants’ motions to 9 dismiss. 10 I. BACKGROUND 11 Plaintiffs are residents of Imperial County who attended a Palo Verde Water District 12 Board meeting on May 17, 2018, and an Imperial County Board of Supervisors meeting 13 on June 4, 2019. Their claims arise from the events which unfolded during these meetings. 14 The first incident took place at a Palo Verde Water District Board meeting on 15 May 17, 2018 (the “May 2018 Meeting”). That morning, Plaintiffs attended the meeting 16 with their two-year-old child and voiced their water concerns to the Board members. FAC 17 ¶ 1. According to Plaintiffs, the exchange became increasingly heated and culminated in 18 Board member Jess Preston throwing a crumpled piece of paper at Mr. Ryan, screaming 19 insults, threatening to “unilaterally seize” Plaintiffs’ child, and trying to physically attack 20 Mr. Ryan. FAC ¶¶ 2–3. Following Mr. Preston’s attempted attack, Plaintiffs allege that 21 Mr. Preston conspired with Palo Verde County Water District Board members and 22 employees David Ayala, Ronald Woods, David Khoury, Barbara Hopton, and Kathy Frice- 23 Sanders (“Water District Defendants”) to deny that Mr. Preston did anything more than 24 throw a piece of paper at Mr. Ryan. FAC ¶ 4. Plaintiffs further allege that various Imperial 25
26 1 Defendant Gilbert Otero filed a notice of joinder in Imperial County Defendants’ motion to dismiss. 27 Dkt. 97. 2 Media Defendants also filed a concurrent anti-SLAPP motion to strike the state claims against them. 28 1 County law enforcement, counsel, and employees—specifically, County Supervisor 2 Raymond Castillo, County Sheriff Raymond Loera, Undersheriff Fred Miramontes, 3 County Counsel Katherine Turner, assistant County Counsel Adam Crook, and County 4 Vice CEO Esperanza Colio-Warren—joined a conspiracy to cover up Mr. Preston’s actions 5 by “coach[ing], advis[ing], approv[ing], and provid[ing] illegal aid and support” to the 6 Board members and employees. FAC ¶ 5. 7 The second incident occurred during a County Board of Supervisors meeting on 8 June 4, 2019 (the “June 2019 Meeting”). Plaintiffs formally requested to speak at the 9 Board meeting, and the Board granted their request. Plaintiffs intended to speak about 10 Mr. Preston’s alleged attempt to “seize” Plaintiffs’ child during the May 2018 Meeting. 11 FAC ¶ 11. During the Board meeting’s public comment period, Ms. Ryan took the podium 12 to speak. FAC ¶ 15. Based on the video recording of this event, Ms. Ryan began her 13 remarks with the comment, “You know, we had a problem in here, right? We had a 14 problem in here when-- on May 17, we had a meeting in there. Your member, Mr. Preston, 15 he came-- he came for this little girl to kidnap her--” while gesturing to the young girl with 16 her. See RJN, Ex. B (56:08–56:30). This personal charge against the Board member 17 caused audience members to start making inaudible comments. At this point, Mr. Ryan 18 began shouting and pointing toward people in the audience. While the contents of his 19 comments are largely unintelligible, Mr. Ryan can be heard repeating the word 20 “kidnapping” in the video recording. Id. at 56:39. 21 In their complaint, Mr. and Ms. Ryan describe the aftermath of their comments as 22 follows: Private Defendants and others in the crowd “started yelling a steady stream of 23 insults and epitaphs” and made “loud, gratuitous” noises, which “had a negating effect 24 upon the ability of [Ms. Ryan] to be heard.” FAC ¶ 16. Board Supervisor Ryan Kelley 25 announced that Plaintiffs broke the Board meeting rules and admonished Plaintiffs that this 26 public meeting is not the appropriate forum for charges of this nature. See FAC p. 25; Ex. 27 A to FAC at 89; RJN, Ex. B (56:44–57:04). Law enforcement officers Rene McNish and 28 other unidentified officers then publicly escorted Plaintiffs out of the Board meeting and 1 “blocked [them] in the street.” FAC ¶ 18. After these events occurred, Plaintiffs allege 2 that Imperial County Defendants conspired together to “use a software program to remove 3 some specific audio tracks” from the official video recording of the June 2019 Meeting in 4 order to “obscure noise made by [Mr. Preston’s wife],” while leaving the rest of the video 5 “unaffected.” FAC ¶ 40. 6 Plaintiffs further allege that Media Defendants published a defamatory newspaper 7 article about them to ruin their reputation and that they did this in concert with other 8 defendants. Plaintiffs allege that news reporter, Uriel Avendano, attended the Board 9 meeting and wrote a news article for the Palo Verde Valley Times (a local newspaper 10 owned by Defendant Yuma Sun Incorporated). See FAC ¶¶ 30, 42–43. By reporting on 11 the events of the Board meeting, Media Defendants “deliberately assisted” the government 12 officials “with perpetuating a false narrative about what happened,” “in order to 13 intentionally and purposefully tar [Plaintiffs] with a badge of infamy, and to discredit their 14 speech by harming Plaintiffs’ reputations.” FAC § E. Plaintiffs further allege that Media 15 Defendants “agreed to adopt and embrace the goals of the conspiracy” with government 16 officials to ruin Plaintiffs’ reputations and deny them their constitutional rights. Id. 17 Based on the above events, Plaintiffs assert a wide-ranging conspiracy by (1) the 18 Palo Verde County Water District and its Board members and employees; (2) the County 19 and its officials and employees; (3) County law enforcement officials; (4) private citizens 20 who attended the June 2019 meeting; and (5) Media Defendants to separate Plaintiffs from 21 their child, deny Plaintiffs their constitutional right to speak at a local government Board 22 meeting, and publicly destroy their reputations. 23 Plaintiffs filed their initial complaint on June 4, 2021, and the operative amended 24 complaint on September 14, 2021, alleging eighty-one “counts” under section 1983 for 25 numerous constitutional violations under the First, Fourth, and Fourteenth Amendments. 26 27 28 1 See Dkt. 9 (FAC) at pp. 24–28 . Based on the same conduct, Plaintiffs also allege state 2 law claims for defamation and violation of California’s Unruh Civil Rights Act. Id. 3 Plaintiffs concurrently filed a document challenging the County Board meeting rule 4 governing the June 2019 Board meeting as unconstitutional and seeking injunctive and 5 declaratory relief. Dkt. 9-1. 6 II. LEGAL STANDARD 7 A motion to dismiss under Federal Rule 12(b)(6) tests the legal sufficiency of the 8 claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 9 731 (9th Cir. 2001). A court must accept all factual allegations pleaded in the complaint 10 as true and draw all reasonable inferences from them in favor of the nonmoving party. 11 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). However, a court 12 need not accept conclusory allegations as true, but “examine whether conclusory 13 allegations follow from the description of facts as alleged by the plaintiff.” Holden v. 14 Hagopian, 978 F.2d 115, 1121 (9th Cir. 1992). “Threadbare recitals of the elements of a 15 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 16 Iqbal, 556 U.S. 662, 678 (2009). To avoid a Rule 12(b)(6) dismissal, a complaint must 17 plead “enough facts to state a claim to relief that is plausible on its face.” Id. (quoting Bell 18 Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). 19 A claim is facially plausible when the factual allegations permit “the court to draw 20 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While 21 a plaintiff need not give “detailed factual allegations,” a plaintiff must plead sufficient facts 22 that, if true, “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 545. 23 “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more 24 than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 25 (quoting Twombly, 550 U.S. at 556). Plausibility requires pleading facts, as opposed to 26
27 3 The paragraphs in the FAC are not consistently numbered and so the Court cites to the page number 28 1 conclusory allegations, which rise above the mere conceivability or possibility of unlawful 2 conduct. Twombly, 550 U.S. at 555. 3 Although pro se pleadings are construed liberally to determine whether a claim has 4 been stated, see Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001), a plaintiff must still 5 present factual and non-conclusory allegations to state a claim. Twombly, 550 U.S. at 555; 6 Hebbe v. Pliler, 627 F.3d 338, 341–41 (9th Cir. 2010). A pro se plaintiff still “must allege 7 with at least some degree of particularity overt acts which defendants engaged in that 8 support the plaintiff’s claim.” Jones v. Cmty. Redev. Agency of Los Angeles, 733 F.2d 646, 9 649 (9th Cir. 1984). 10 When a complaint fails to state a claim as set forth above, a plaintiff may seek leave 11 to amend to cure its deficiencies. Federal Rule 15(a) provides that a district court should 12 “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). In deciding 13 whether to grant leave to amend, the court considers the following factors: the presence or 14 absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by 15 previous amendments, undue prejudice to the opposing party, and futility of the proposed 16 amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); DCD Programs, Ltd. v. Leighton, 17 833 F.2d 183, 186 (9th Cir. 1987). 18 A district court has discretion to deny leave to amend when a proposed amendment 19 would be futile. Chappel v. Lab. Corp. of America, 232 F.3d 719, 725–26 (9th Cir. 2000). 20 Amendment is futile “if no set of facts can be proved under the amendment to the pleadings 21 that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff–Sexton, 22 Inc., 845 F.2d 209, 214 (9th Cir. 1988). Thus, leave to amend should be denied where “the 23 allegation of other facts consistent with the challenged pleading could not possibly cure 24 the deficiency.” New v. Armour Pharm. Co., 67 F.3d 716, 722 (9th Cir. 1995); Reddy v. 25 Litton Indus., Inc., 912 F.2d 291, 297 (9th Cir. 1990) (amended complaint may not 26 contradict prior pleadings). Repeated failure to cure deficiencies by amendment previously 27 allowed is also a reason to deny leave to amend. Foman, 371 U.S. at 182. “[W]hen a 28 district court has already granted a plaintiff leave to amend, its discretion in deciding 1 subsequent motions to amend is particularly broad.” Chodos v. West Publishing Co., 292 2 F.3d 992, 1003 (9th Cir. 2002). 3 III. DISCUSSION 4 Imperial County Defendants, Private Defendants, and Media Defendants move to 5 dismiss on various grounds, including that (1) the statute of limitations bars Plaintiffs’ 6 claims arising from the May 2018 Meeting; (2) Plaintiffs fail to allege that Private 7 Defendants or Media Defendants engaged in state action as required for a § 1983 claim; 8 (3) Plaintiffs fail to state a § 1983 claim against the County; and (4) qualified immunity 9 shields Individual County Defendants from Plaintiffs’ § 1983 claims. The Court will 10 address each of these arguments in turn. 11 A. Requests for Judicial Notice 12 Prior to addressing the arguments, the Court first examines the parties’ requests for 13 judicial notice. First, Plaintiffs filed a request for judicial notice of Imperial County’s 14 Rules for the Conduct of Board Meetings (the “Rules for Conduct”). Dkt. 9-1; 15 see https://board.imperialcounty.org/wpcontent/uploads/2019/09/BOSRules.pdf. Second, 16 Plaintiffs and Media Defendants both filed a request for judicial notice of an official video 17 excerpt of the June 2019 Meeting (“June 2019 Video”). Dkt. 9; Dkt. 88-1 (RJN, Ex. B). 18 A court may “consider certain materials—documents attached to the complaint, 19 documents incorporated by reference in the complaint, or matters of judicial notice— 20 without converting the motion to dismiss into a motion for summary judgment.” United 21 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also Fed. R. Evid. 201. A court 22 may take judicial notice of matters that are “not subject to reasonable dispute” because they 23 “can be accurately and readily determined from sources whose accuracy cannot reasonably 24 be questioned.” Fed. R. Evid. 201(b). Materials that may be judicially noticed include 25 “the undisputed and publicly available information displayed on government websites.” 26 King v. Cty. of Los Angeles, 885 F.3d 548, 555 (9th Cir. 2018); Lee v. City of Los Angeles, 27 250 F.3d 668, 689 (9th Cir. 2001) (taking judicial notice of any facts not subject to 28 reasonable dispute). 1 Here, the Board of Supervisor’s Rules for Conduct and the June 2019 Video are 2 public records available on Imperial County’s Board of Supervisors website, and, 3 therefore, are not subject to reasonable dispute. See, e.g., Santa Monica Food Not Bombs 4 v. City of Santa Monica, 450 F.3d 1022, 1025 (9th Cir. 2006) (affirming judicial notice of 5 documents on government’s official website because their accuracy cannot reasonably be 6 questioned). Plaintiffs dispute a specific portion of the June 2019 Video’s audio, alleging 7 that an unidentified person “remove[d] some specific audio tracks” from the video in order 8 to “obscure noise made by [Mr. Preston’s wife].” FAC ¶ 40. They admit in their pleading, 9 however, that the rest of the recording is “unaffected.” FAC ¶ 40. As Plaintiffs do not 10 otherwise dispute the contents of the June 2019 Video, the Court takes judicial notice of 11 the events as captured in the undisputed portions of the June 2019 Video. Lee, 250 F.3d at 12 689. The Court also grants Plaintiff’s request for judicial notice of the Board of 13 Supervisor’s Rules for Conduct. 14 B. The Statute of Limitations Bars Plaintiffs’ Claims Arising from the May 2018 15 Meeting 16 Based on the events that occurred during the May 17, 2018, meeting, Plaintiffs allege 17 that all defendants conspired together to violate their Fourteenth Amendment right not to 18 be separated from their children without due process. See Stanley v. Illinois, 405 U.S. 645, 19 651 (1972); Campbell v. Burt, 141 F.3d 927 (9th Cir. 1998). Before turning to the 20 substance of these claims, the Court first examines whether the statute of limitations bars 21 Plaintiffs’ § 1983 claims arising from the May 17, 2018, Water Board meeting. 22 For claims under section 1983, the applicable limitations period is the state law 23 limitations period for personal injury actions. Wallace v. Kato, 549 U.S. 384, 387–88 24 (2007); Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 694 (9th Cir. 2003). Because the 25 California statute of limitations for personal injury actions is two years, Cal. Code. Civ. 26 Proc. § 335.1, the statute of limitations for a § 1983 claim arising in California is two years. 27 See Wallace, 549 U.S. at 397. When “‘the running of the statute is apparent on the face of 28 the complaint,’” “a claim may be dismissed under Rule 12(b)(6) on the ground that it is 1 barred by the applicable statute of limitations.” Von Saher v. Norton Simon Museum of Art 2 at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 3 465 F.3d 992, 997 (9th Cir. 2006)). 4 Here, the Court concludes that the statute of limitations bars Plaintiffs’ Fourteenth 5 Amendment and other claims arising from the May 2018 Meeting. These claims arise from 6 the incident on May 17, 2018, where Water District Board member Mr. Preston allegedly 7 threatened to “unilaterally seize” Plaintiffs’ child, and other Board members and County 8 employees conspired to cover up Mr. Preston’s conduct. FAC ¶ 3. Plaintiffs filed the 9 initial complaint on June 4, 2021, over two years after the May 2018 incident occurred. 10 Plaintiffs appear to argue that the statute of limitations began to run on June 4, 2019, 11 because this conspiracy was finalized and carried out during the June 2019 Meeting. 12 Dkt. 106 (Opposition) at 22–23. However, Plaintiff’s First Amended Complaint contains 13 no factual allegations regarding how the May 2018 threat to seize their child came to 14 fruition during the June 4, 2019, County Board of Supervisors meeting. Plaintiffs similarly 15 fail to allege facts connecting the conspiracy to cover up Mr. Preston’s conduct during the 16 May 2018 meeting to being denied the right speak at the June 2019 Meeting. Thus, after 17 construing the First Amended Complaint liberally and in the light most favorable to 18 Plaintiffs, the Court concludes that Plaintiffs fail to allege facts that would plausibly 19 establish that the May 2018 incident was part of a larger conspiracy that culminated in the 20 wrongs they suffered at the June 2019 Meeting. The Fourteenth Amendment and related 21 conspiracy claims arising from the May 2018 Meeting alleged against all the defendants 22 are therefore barred by the statute of limitations. Accordingly, the Court dismisses these 23 claims. The Court also dismisses from the case the following defendants who are 24 associated only with the May 2018 incident: the Palo Verde Water District, Kathi Frice- 25 Sanders, Barbara Hopton, Donna Lord, and County Vice CEO Esperanza Colio-Warren. 26 The Court dismisses the above claims and defendants with prejudice because 27 amendment is futile to cure the statute of limitations bar. Given the unrelated nature of the 28 allegations arising from the May 2018 Meeting and the June 2019 Meeting, Plaintiffs could 1 not plead facts plausibly showing a connection between the two separate incidents and 2 establishing that the two events were part of the same conspiracy. Miller, 845 F.2d at 214 3 (amendment is futile “if no set of facts can be proved under the amendment to the pleadings 4 that would constitute a valid and sufficient claim”). 5 C. Plaintiffs Fail to Allege State Action to State a Section 1983 Claim Against Private 6 Defendants and Media Defendants 7 Plaintiffs allege that Private Defendants, in violation of section 1983, conspired with 8 County government officials and law enforcement to deny their rights at the June 2019 9 Board meeting by making loud noises while Ms. Ryan spoke. FAC ¶ 16. Plaintiffs also 10 allege that Media Defendants conspired with County government officials to deny their 11 constitutional rights by publishing the news article on the June 2019 Meeting. FAC ¶ 43. 12 Private Defendants and Media Defendants argue that Plaintiffs cannot show they acted 13 under the color of state law as required to state a § 1983 claim. 14 To state a claim under section 1983, a plaintiff must “(1) allege the violation of a 15 right secured by the Constitution and laws of the United States; and (2) show that the 16 alleged deprivation was committed by a person acting under the color of state law.” Naffe 17 v. Frey, 789 F.3d 1030, 1035–36 (9th Cir. 2015) (internal quotations omitted). Courts 18 presume that private conduct does not constitute action under the color of state law. See 19 Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). However, 20 § 1983 actions “can lie against a private party when ‘he is a willful participant in joint 21 action with the State or its agents.’” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) 22 (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). “One way the ‘joint action’ test is 23 satisfied is if a ‘conspiracy’ is shown.” Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 24 1983). In other words, “[a] private party may be considered to have acted under color of 25 state law when it engages in a conspiracy or acts in concert with state agents to deprive 26 one’s constitutional rights.” Fonda v. Gray, 707 F.2d 435, 437 (9th Cir. 1983). 27 Alleging a viable § 1983 claim against private parties, however, takes more than just 28 conclusory allegations of a conspiracy. Woodrum v. Woodward County, 866 F.2d 1121, 1 1126 (9th Cir. 1989). Instead, a plaintiff must show (1) an agreement between the 2 defendants to deprive the plaintiff of a constitutional right, (2) an overt act in furtherance 3 of the conspiracy, and (3) a constitutional violation. See Gilbrook v. City of Westminster, 4 177 F.3d 839, 856–57 (9th Cir. 1999). A plaintiff must allege an “‘agreement or meeting 5 of the minds’ to violate constitutional rights” between a private party and the government. 6 Fonda, 707 F.2d at 438 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)). 7 “To be liable as a co-conspirator, a private defendant must share with the public entity the 8 goal of violating a plaintiff’s constitutional rights” and demonstrate a “substantial degree 9 of cooperation” with the government to violate those rights. Franklin v. Fox, 312 F.3d 10 423, 445 (9th Cir. 2002). 11 The Court first examines Plaintiffs’ claims against Private Defendants. Because 12 Private Defendants are three private citizens who attended the June 2019 Board meeting, 13 the Court examines whether Plaintiffs sufficiently allege that Private Defendants conspired 14 or acted jointly with a state actor. Plaintiffs merely allege that Private Defendants attended 15 the June 2019 Board meeting and acted as a “mob of noisemakers” in the audience by 16 yelling insults. FAC ¶¶ 16, 33. Plaintiffs include conclusory allegations that Private 17 Defendants were part of a conspiracy with state actors but allege no facts to support the 18 inference that a meeting of the minds or substantial cooperation occurred between Private 19 Defendants and government officials. FAC ¶¶ 21, 28. Because Plaintiffs fail to provide 20 factual, non-conclusory allegations against Private Defendants that support a conspiracy or 21 joint action with a state actor, the Court dismisses the § 1983 claims against Private 22 Defendants. Twombly, 550 U.S. at 555. 23 The Court now turns to Plaintiffs’ claims against Media Defendants. Similarly, the 24 Court examines whether Plaintiffs have sufficiently alleged that Media Defendants—a 25 private local newspaper and private employees—conspired or acted jointly with a state 26 actor. Plaintiffs base their conspiracy allegations solely on Mr. Avendano’s presence at 27 the June 2019 Board meeting and the newspaper article that he published. FAC ¶ 43. 28 Plaintiffs provide no additional factual allegations to support the existence of an agreement 1 to violate constitutional rights between Media Defendants and a state actor or substantial 2 cooperation between them. Twombly, 550 U.S. at 555 (plausibility requires pleading facts, 3 as opposed to conclusory allegations). The only other allegations regarding Media 4 Defendants are conclusory in nature. See e.g., FAC ¶ 30 (alleging Media Defendants 5 “knowingly agreed to embrace and adopt the goals of the conspiracy described”). Plaintiffs 6 thus fail to allege sufficient facts to support a conspiracy or joint action between Media 7 Defendants and a state actor, as required to state a § 1983 claim. After construing the 8 complaint liberally and in the light most favorable to Plaintiffs, the Court finds that 9 Plaintiffs have failed to allege the requisite state action to state a § 1983 claim against 10 Media Defendants. 11 The Court dismisses these § 1983 claims against Private Defendants and Media 12 Defendants with prejudice because amendment would be futile. The entirety of Plaintiffs’ 13 allegations against Private Defendants who attended the June 2019 Meeting consists of 14 complaints about their noisemaking and yelling insults. Given that the crux of Plaintiffs’ 15 grievance against Private Defendants is their loud and heckling behavior during 16 Ms. Ryan’s comments, Plaintiffs could not plausibly allege facts to establish a meeting of 17 the minds and substantial cooperation with a state actor required to state a § 1983 claim 18 against private actors. As to Media Defendants, the entirety of Plaintiffs’ allegations is that 19 Mr. Avendano attended the June 2019 Meeting and wrote a news article published by a 20 local newspaper. Because Plaintiffs’ complaints against Media Defendants rest solely on 21 the publication of the newspaper article about them, Plaintiffs could not amend to plausibly 22 allege facts establishing the requisite meeting of the minds and substantial cooperation 23 between Media Defendants and a state actor to state a § 1983 claim against these private 24 actors. Granting leave to amend would thus be futile. Miller, 845 F.2d at 214. 25 D. Plaintiffs Fail to Allege a Monell Claim against the County and Individual County 26 Defendants in their Official Capacities 27 Plaintiffs allege § 1983 claims against the County of Imperial and various County 28 officials and employees in their official capacities. Because Plaintiffs do not adequately 1 plead a Monell claim against these defendants, the Court dismisses their claims against 2 them. 3 Municipalities and officials sued solely in their official capacities may not be held 4 vicariously liable under section 1983 for the unconstitutional acts of its employees under 5 the theory of respondeat superior. Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 6 (1978); Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). Instead, a county is 7 liable only when it maintains a policy or custom that causes the deprivation of a plaintiff’s 8 federally protected rights. Monell, 436 U.S. at 690. To prevail on a Monell claim, a 9 plaintiff must show that defendants expressly adopted an official policy, longstanding 10 practice, or custom that was the “moving force” behind his injuries. Id. at 694. To establish 11 an official policy that would give rise to Monell liability, a plaintiff must allege facts to 12 support one of the following: (1) an unconstitutional custom or policy behind the violation 13 of rights; (2) a deliberately indifferent omission, such as a failure to train or failure to have 14 a needed policy; or (3) a final policy-maker’s involvement in, or ratification of, the conduct 15 underlying the violation of rights. Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1249– 16 50 (9th Cir. 2010), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 17 1060 (9th Cir. 2016). 18 Here, Plaintiffs appear to base their section 1983 municipal and official capacity 19 claims against these defendants on either (1) the actions of various County officials and 20 employees; or (2) on the County’s Rules for Conduct as the unlawful policy underpinning 21 their Monell claim. If the former, Plaintiffs’ § 1983 claims against the County and official- 22 capacity defendants fail because they cannot be directly liable for actions of County 23 employees under a respondeat superior theory. Monell, 436 U.S. at 690, 691 n.55. If, 24 however, Plaintiffs intended to bring a Monell claim based on the County Rules for 25 Conduct, the Court will examine whether Plaintiffs have alleged that these rules were the 26 unconstitutional policy behind the violation of their rights. Clouthier, 591 F.3d at 1249– 27 50. 28 1 It is well established that rules placing reasonable restrictions on speech during 2 government meetings are constitutional. A government board meeting is a limited public 3 forum. Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 270 (9th Cir. 1995). A 4 government entity can regulate a limited public forum by placing reasonable restrictions 5 on the time, place, and manner of speech. Id. As long as the regulations are “viewpoint 6 neutral and enforced that way,” the regulations can even restrict the content of speech. 7 Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010). In White v. City of Norwalk, 8 the Ninth Circuit upheld the constitutionality of a council meeting’s rule of decorum 9 proscribing conduct that disturbs “the orderly conduct of any Council meeting” and 10 allowing the presiding officer to use her discretion to bar the disrupting individual “from 11 further audience before the Council during that meeting.” 900 F.2d 1421, 1424 (9th Cir. 12 1990). The court reasoned that the rule of decorum sought to further the government’s 13 legitimate interest in conducting orderly and efficient council meetings by prohibiting 14 actual disruptive comments and behavior. Id. at 1425. 15 Upon review of the County’s Rules for Conduct, it appears that these rules are 16 constitutional because their restrictions promote the orderly conduct of the Board meetings 17 in a viewpoint neutral manner. Imperial County’s Rules for Conduct provide that “[i]n the 18 event that any meeting of the Board is willfully interrupted or disrupted by a person or by 19 a group or groups of persons so as to render the orderly conduct of the meeting unfeasible, 20 the Chairperson may recess the meeting or order the person, group or groups of persons 21 willfully interrupting the meeting to leave the meeting or be removed from the meeting, or 22 in appropriate circumstances, order the meeting room cleared and continue in session.” 23 County of Imperial Board of Supervisors Rules for the Conduct of Board Meetings, Section 24 II(D)(3), https://board.imperialcounty.org/wp-content/uploads/2019/09/BOSRules.pdf. 25 Like the meeting rules of decorum in White, the Court finds that the Rules for Conduct 26 governing the Board meetings are constitutional. Because the Rules for Conduct proscribe 27 conduct that renders an orderly meeting infeasible and permits the removal of individuals 28 who have disrupted the meeting, these rules further the County’s legitimate interests in 1 conducting an efficient and orderly Board meeting. Moreover, the Rules for Conduct are 2 viewpoint neutral because they do not restrict the position that a speaker may take on any 3 issue; instead, they simply prohibit disruptive conduct and provide a mechanism for 4 removing from meetings the individuals who have created a disruption. Accordingly, the 5 Court finds that Plaintiffs have failed to plead the unconstitutionality of the policy 6 underpinning their Monell claim. For these reasons, the Court dismisses Plaintiffs’ Monell 7 claim against the County and official-capacity defendants based on the County’s Rules for 8 Conduct without prejudice. 9 Plaintiffs also concurrently filed a document characterized as a facial and as-applied 10 constitutional challenge to the Rules for Conduct seeking declaratory and injunctive relief. 11 Dkt. 9-1. A plaintiff must bring a § 1983 claim against the appropriate entity for a facial 12 and as-applied constitutional challenge to a County ordinance or rule. See, e.g., RK 13 Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1054 (9th Cir. 2002) (providing that section 14 1983 is the method for vindicating constitutional violations including challenges to 15 ordinances). Plaintiffs have failed to do so here. Accordingly, the Court also dismisses 16 Plaintiffs’ facial and as-applied constitutional challenge to the Board of Supervisors’ Rules 17 for Conduct without prejudice. 18 E. Qualified Immunity Bars Plaintiffs’ § 1983 Claims Against County Officials in 19 their Individual Capacities 20 Plaintiffs also brought § 1983 claims against the members of the County Board of 21 Supervisors and various County law enforcement officials and employees in their 22 individual capacities (“Individual County Defendants”) for removing them from the June 23 2019 Meeting. Plaintiffs allege that by removing them from the public meeting, these 24 defendants violated the following constitutional rights: (1) Fourteenth Amendment right to 25 speak, associate, assemble, and petition the government, (2) Fourteenth Amendment right 26 to be free from detention and to movement, (3) Fourteenth Amendment right under the 27 state-created danger doctrine, (4) Fourteenth Amendment right to a liberty interest in their 28 reputation not being stigmatized, and (5) Fourteenth Amendment right to be free from 1 discriminatory denial of speech rights, police, and prosecution services. Individual County 2 Defendants argue that they removed Plaintiffs from the Board meeting according to the 3 County’s Rules for Conduct; qualified immunity, therefore, shields them from § 1983 4 liability because they did not violate a clearly established constitutional right. 5 Qualified immunity shields government officials from personal liability for civil 6 damages unless their conduct “violated a clearly established constitutional right.” 7 Williamson v. City of Nat’l City, 23 F.4th 1146, 1151 (9th Cir. 2022) (quoting Monzon v. 8 City of Murrieta, 978 F.3d 1150, 1156 (9th Cir. 2020)). To determine whether an official 9 is entitled to qualified immunity, the court examines “(1) whether the official’s conduct 10 violated a constitutional right, and (2) whether that right was clearly established at the time 11 of the events at issue.” Id. (internal quotation marks omitted). A court must determine 12 whether the plaintiff has alleged the deprivation of a clearly established right such that it 13 would be clear to a reasonable officer that his conduct was unlawful in the situation he 14 confronted. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). Because officers have 15 the right to assume that an ordinance or rule is constitutional, they are entitled to qualified 16 immunity when their “allegedly unconstitutional action” was simply to enforce “an 17 ordinance which was duly enacted” by the government. Acosta v. City of Costa Mesa, 718 18 F.3d 800, 823–824 (9th Cir. 2013) (citing Grossman v. City of Portland, 33 F.3d 1200, 19 1209 (9th Cir. 1994)). It would not be clear to a reasonable officer that his conduct was 20 unlawful if a statute or ordinance authorized such conduct. Grossman, 33 F.3d at 1209. 21 Here, the Court examines Plaintiffs’ allegations and the judicially noticed June 2019 22 Video to determine whether Defendants simply enforced the County’s Rules for Conduct 23 in ejecting Plaintiffs from the meeting. If so, they are entitled to qualified immunity. 24 As set forth above, the County’s Rules for Conduct for its local government meetings 25 provide that if any meeting is disrupted, the Chairperson may order the removal of the 26 people causing the disruption. Here, it appears from Plaintiffs’ allegations and the 27 judicially noticed June 2019 Video that Plaintiffs did indeed cause a disruption at the June 28 2019 Board of Supervisors Meeting. Ms. Ryan took the podium and made the accusation 1 that Board member Jess Preston tried to “kidnap” her daughter. RJN, Ex. B (56:08–56:30). 2 This caused an immediate hubbub among the audience members. Id. at 56:31. Mr. Ryan 3 then followed up with pointing at and directing comments to various audience members; 4 while his comments are largely inaudible, the Court could discern the word “kidnapping.” 5 Id. at 56:39. 6 Plaintiffs’ own allegations demonstrate that Individual County Defendants acted 7 pursuant to the County’s Rules for Conduct in halting Ms. Ryan’s speech and removing 8 Plaintiffs once a disruption ensued. As provided for in the Rules, Board Supervisor Ryan 9 Kelley halted Plaintiffs’ speech and announced that Plaintiffs broke the Board meeting 10 rules. FAC p. 26. (According to the June 2019 Video, Mr. Kelley appears to admonish 11 Plaintiffs that this meeting was not the appropriate place to make a charge of this nature. 12 RJN, Ex. B at 56:40.) Subsequently, law enforcement officers Rene McNish and other 13 unidentified officers removed Plaintiffs from the meeting. See FAC ¶¶ 16–18; p. 26. Based 14 on the above, the Court finds that Individual County Defendants are thus entitled to 15 qualified immunity because they were following the County’s Rules for Conduct to remove 16 persons who cause a disruption in the Board meeting. See FAC ¶ 15; Grossman, 33 F.3d 17 at 1209. Given these duly enacted rules, reasonable public officials would not have known 18 that it was unlawful to remove Plaintiffs from the Board meeting after their conduct 19 sparked loud noises and shouting by the crowd. FAC ¶ 16; White, 900 F.2d at 1425–26. 20 Accordingly, the § 1983 claims against Individual County Defendants are dismissed on 21 grounds of qualified immunity. 22 The Court dismisses these claims with prejudice because amendment would be 23 futile. The judicially noticed June 2019 Video shows that Mr. and Ms. Ryan’s conduct 24 during the public comment period caused an actual disruption at the Board meeting and 25 Individual County Defendants removed them from the meeting as a result of the disruption. 26 RJN, Ex. B. The occurrences depicted in the June 2019 Video are consistent with the 27 allegations in Plaintiffs’ complaint. Thus, the Court concludes that Plaintiffs could not 28 1 plausibly plead facts consistent with the complaint and the June 2019 Video to cure the 2 deficiencies. Armour Pharm. Co., 67 F.3d at 722. 3 F. Plaintiffs Fail to State an Unruh Act Claim 4 Finally, Plaintiffs allege an Unruh Act, Cal. Civ. Code § 51, claim against all 5 defendants.4 Plaintiffs allege no additional facts to support this claim and proceed instead 6 “on the same set of facts” that “depend upon proving the same elements” as their § 1983 7 claims. FAC § J, p. 28. 8 The Unruh Civil Rights Act prohibits a “business establishment” from 9 discriminating against any person based on “their sex, race, color, religion, ancestry, 10 national origin, disability, medical condition, genetic information, marital status, or sexual 11 orientation.” Cal. Civ. Code § 51. The Unruh Act imposes liability only on business 12 establishments. Brennon B. v. Sup. Ct. of Sup. Ct. of Contra Costa Cty., 57 Cal. App. 5th 13 367, 369 (Cal. Ct. App. 2020). An entity qualifies as a business establishment for purposes 14 of the Unruh Act when it “appears to have been operating in a capacity that is the functional 15 equivalent of a commercial enterprise.” Warfield v. Peninsula Golf & Country Club, 10 16 Cal. 4th 594, 622 (1995). Although government entities may constitute “business 17 establishments,” courts have declined to impose liability under the Unruh Act when the 18 alleged wrongful acts did not relate to a business function. Harrison v. City of Rancho 19 Mirage, 243 Cal. App. 4th 162, 173 (2015) (holding the city did not act as “business 20 establishment” when engaging in legislative function); Romstad v. Contra Costa Cnty., 41 21 Fed. Appx. 43, 46 (9th Cir. 2002) (concluding that county social services department does 22 not qualify as “business establishment”). 23 Here, Plaintiffs have alleged no facts to support an essential element of their Unruh 24 Act claim—that defendants were acting as a business establishment. In particular, 25 26 27 4 The Court addresses the Unruh Act and defamation claim against Media Defendants in the Court’s separate order on their anti-SLAPP (under California’s Strategic Lawsuit Against Public Participation 28 1 Plaintiffs fail to allege facts to show that the County, the Water District, the Board of 2 Supervisors, and their associated officials and employees were acting as a commercial 3 enterprise, rather than engaging in public service, when conducting or attending the Board 4 meetings at issue. See Cooley v. City of Los Angeles, 2019 WL 3766554, at *6 (C.D. Cal. 5 Aug. 5, 2019) (dismissing Unruh Act claim against city because Plaintiffs failed to show 6 that allegedly unlawful activity are a “business-like activity” as opposed to “a public 7 service”). Plaintiffs also do not allege facts showing how Private Defendants, private 8 citizens attending a local government meeting, are acting as a commercial enterprise. 9 Accordingly, the Court dismisses Plaintiffs’ Unruh Act claims against Imperial County 10 Defendants and Private Defendants. The Court dismisses these claims with prejudice 11 because Plaintiffs could not plausibly allege facts to show that the County and its 12 government officials conducting a public Board meeting, and private individuals attending 13 such meeting, are operating as a commercial enterprise to constitute a business 14 establishment. 15 IV. CONCLUSION 16 For the reasons discussed above, the Court hereby orders the following: 17 Imperial County Defendants’ motion to dismiss [Dkt. 67] is GRANTED and 18 the claims against them are DISMISSED. The Court dismisses the § 1983 19 claims against the County without prejudice and dismisses the § 1983 claims 20 against the Individual County Defendants with prejudice. The Court 21 dismisses the Unruh Act claims with prejudice. 22 Private Defendants’ motion to dismiss [Dkt. 101] is GRANTED and the 23 section 1983 and Unruh Act claims against them are DISMISSED with 24 prejudice. 25 // 26 // 27 // 28 // 1 e Media Defendants’ motion to dismiss [Dkt. 88] is GRANTED with respect to 2 the § 1983 claims and the § 1983 claims are DISMISSED with prejudice. 3 4 IT IS SO ORDERED. 5 || Dated: September 29, 2022 6 Ho orgbfe Tinsook Ohta 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28