Case 2:12-cv-02497-KJM-EFB Document 135 Filed 08/09/16 Page 1 of 8

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID PICKUP, et al.,

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Plaintiffs,

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No. 2:12-cv-02497-KJM-EFB

v.

ORDER

EDMUND G. BROWN JR., Governor of

the State of California, in his official
capacity, et al.,

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Defendants,

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___________________________________

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and EQUALITY CALIFORNIA,

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Intervenor-Defendant.

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This matter is before the court on defendants motion to dismiss plaintiffs first

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amended complaint. Mot., ECF No. 129. Equality California (EQCA) joined the motion. ECF

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No. 130. Plaintiffs oppose, Oppn, ECF No. 131, and defendants have replied, Reply, ECF No.

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132. The matter was submitted as provided by Local Rule 230(g). As explained below, the court

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GRANTS defendants motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) without

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leave to amend.

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I.

PROCEDURAL HISTORY

Plaintiffs filed the original complaint and a motion for a preliminary injunction on

October 4, 2012, seeking to enjoin Senate Bill 1172 (SB 1172), enacted as California Business

and Professions Code 865, 865.1 and 865.2. Compl., ECF No. 1; Mot. for Prelim. Inj., ECF

No. 3. SB 1172 prohibits licensed mental health professionals1 in California from engaging in

sexual orientation change efforts (SOCE) with persons under the age of eighteen. Order

Granting Mot. to Dismiss at 3. SOCE includes aversion and nonaversion treatment intended to

change gay mens and lesbians thought patterns by reframing desires, redirecting thoughts, or

using hypnosis, with the goal of changing sexual arousal, behavior, and orientation. ECF

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No. 123 (citations omitted). The court denied plaintiffs motion for preliminary injunction,

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because plaintiffs had not established a likelihood of success on the merits of any claim. See

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Order Denying Prelim. Inj., ECF No. 80. The court also granted EQCAs request to intervene.

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ECF No. 81.

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Plaintiffs appealed. ECF No. 89. The Ninth Circuit affirmed this courts decision

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denying plaintiffs motion for preliminary injunction in a decision consolidated with review of

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another case from this court. Pickup v. Brown, 740 F.3d 1208, 1236 (9th Cir. 2013), cert. denied,

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134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, 134 S. Ct. 2881 (2014).

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Confirming the application of rational basis review, the Ninth Circuit held that SB 1172 did not

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violate the free speech rights of SOCE practitioners or minor patients, is neither vague nor

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overbroad, and does not violate parents fundamental rights. Id.

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Following the Ninth Circuits decision, this court granted defendants first motion

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to dismiss, which also was joined by EQCA. ECF Nos. 112, 113, 123. The court granted

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plaintiffs leave to amend as to their as-applied challenges under claim one, violation of plaintiffs

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A mental health professional is defined as a physician and surgeon specializing in the

practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed
marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a
licensed educational psychologist, a credentialed school psychologist, a licensed clinical social
worker, an associate clinical social worker, a licensed professional clinical counselor, a registered
clinical counselor, intern, or trainee, or any other person designated as a mental health
professional under California law or regulation. Cal. Bus. & Prof. Code 865(a).
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First Amendment right to free speech and plaintiff minors right to receive information, and claim

three, plaintiff parents and minors First Amendment right to free exercise of religion. Order

Granting Mot. to Dismiss, ECF No. 123.

Plaintiffs filed the first amended complaint on October 28, 2015. First Am.

Compl. (FAC), ECF No. 126. Defendants filed the instant motion to dismiss on November 25,

2015.

II.

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FACTUAL BACKGROUND
The court previously has reviewed the factual background of this case in detail in

past orders. The Ninth Circuits opinion affirming the denial of a preliminary injunction also

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reviews the facts. See ECF Nos. 80, 100, 123. The court briefly reviews the facts as pled in the

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amended complaint and relevant to the instant motion.

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The first amended complaint alleges that SB 1172 violates plaintiffs rights to free

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speech and free exercise of religion under the First Amendment. Specifically, plaintiffs allege

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defendant Governor Brown signed SB 1172 into law on September 29, 2012. FAC 19. The

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Governor responsible for executing California law, and is directly responsible for appointing,

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directing and supervising his cabinet secretaries. FAC 16.

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With respect to the free speech claim, plaintiffs allege SB 1172 is

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unconstitutionally vague and does not survive strict scrutiny or even rational basis review. FAC

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197209. Under the second claim of right to free exercise of religion, plaintiffs allege SB

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1172 places a substantial burden on plaintiffs religious beliefs and does not survive strict

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scrutiny review. FAC 212227. Specifically, defendants application of SB 1172 has a

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chilling effect on plaintiff Pickups counseling in California, FAC 93, and as applied and

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enforced, SB 1172 prohibits plaintiffs, from exercising their religious beliefs to help others by

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making SOCE counseling illegal. See, e.g., FAC 93, 114, 134, 146, 158, 172.

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Plaintiffs further allege they requested clarification from the California Board of

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Behavior Sciences (BBS), a division of defendant Secretary Cabelleros Business, Consumer

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Affairs, and Housing Agency, regarding the specific application and enforcement of SB 1172.

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FAC 174. Specifically, plaintiffs allege they wrote to inquire how they can provide such
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acceptance and support to clients who come to us with a desire to reduce their unwanted same-sex

attractions and increase opposite-sex attractions when we are at the same time being required by

law to tell them we cannot assist them in their goals? FAC 176. In its response letter, BBS

stated, in relevant part, that SB 1172 prohibits a California mental health provider from engaging

in sexual orientation change efforts with any patient under the age of 18 years old. FAC, Ex. C,

ECF No. 126-3 at 2. The letter further stated that courts have upheld the provisions of [SB]

1172. Therefore, the law is now in effect and applicable to all California mental health

providers. Id.

III.

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LEGAL STANDARD
A complaint need contain only a short and plain statement of the claim showing

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that the pleader is entitled to relief, Fed. R. Civ. P. 8(a)(2), not detailed factual allegations,

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than

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unadorned accusations; sufficient factual matter must make the claim at least plausible.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory or formulaic recitations of a claims

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elements do not alone suffice. Id. (quoting Twombly, 550 U.S. at 555).

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A party may thus move to dismiss for failure to state a claim upon which relief

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can be granted. Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks

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a cognizable legal theory or if its factual allegations do not support a cognizable legal theory.

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Hartmann v. Cal. Dept of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). In making this

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context-specific evaluation, this court must presume all factual allegations of the complaint to be

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true and draw all reasonable inferences in favor of the nonmoving party. Usher v. City of

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Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule does not apply to a legal conclusion

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couched as a factual allegation, Papasan v. Allain, 478 U.S. 265, 286 (1986) quoted in

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Twombly, 550 U.S. at 555, nor to allegations that contradict matters properly subject to judicial

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notice or to material attached to or incorporated by reference into the complaint. Sprewell v.

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Golden State Warriors, 266 F.3d 979, 98889 (9th Cir. 2001).

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be
freely given when justice so requires, bearing in mind the underlying purpose of Rule 15 to
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facilitate decision on the merits, rather than on the pleadings or technicalities. Lopez v. Smith,

203 F.3d 1122, 1127, 1140 (9th Cir. 2000) (en banc) (internal quotation marks and alterations

omitted).

IV.

DISCUSSION

Defendants motion raises two issues: (1) whether defendant Governor Brown is

immune from suit under the Eleventh Amendment, and (2) whether plaintiffs have stated viable

as-applied challenges seeking to vindicate their First Amendment free speech and free exercise

rights.

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A.

The Eleventh Amendment (All Claims)

Defendants argue Governor Brown is immune from suit under the Eleventh

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Amendment, because the first amended complaint alleges insufficient facts to establish a specific

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and direct connection between the Governor and the enforcement of SB 1172. Mot. at 8. In other

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words, the case falls outside the exception to government official immunity established by

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Ex parte Young, 209 U.S. 123 (1908). See Los Angeles Cty. Bar Assn v. Eu, 979 F.2d 697, 704

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(9th Cir. 1992) (this connection must be fairly direct; a generalized duty to enforce state law or

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general supervisory power over the persons responsible for enforcing the challenged provision

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will not subject an official to suit.).

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Plaintiffs argue Governor Brown is responsible for executing California law.

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Although plaintiffs rely heavily on Eu, Oppn at 45, this case is distinguishable. In Eu, the

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Ninth Circuit found the defendant officials there not immune under the Eleventh Amendment,

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because they had specific connections to the challenged statute. 979 F.2d at 704. One official

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had a duty to appoint judges to any judicial positions newly created under the challenged statute,

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while the other had a duty to certify subsequent elections for those positions. Id. Here, in

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contrast, Governor Brown has a general overarching duty to execute California law. The first

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amended complaint is devoid of any factual allegations that Governor Brown has a specific duty

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to enforce or implement SB 1172 in particular. See Assoc. des Eleveurs de Canards et dOies du

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Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013) (Eleventh Amendment immunity applies to

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Governor where his only connection to statute at issue was general duty to enforce California
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law); Bolbol v. Brown, 120 F. Supp. 3d 1010, 1019 (N.D. Cal. 2015) (Eleventh Amendment bars

plaintiffs claims against Attorney General because his general duty to enforce California law is

insufficient to invoke Ex parte Young).

Plaintiffs other allegation, that Governor Brown is directly responsible for

appointing, directing and supervising his cabinet secretaries including Secretary Caballero, who

interprets, applies, and enforces SB 1172, is similarly insufficient. Governor Brown has a general

duty to appoint, direct, and supervise all of his cabinet secretaries. Plaintiffs present no factual

allegations that show Governor Browns general duty rises to the level of direct enforcement or

supervision. See, e.g., Natl Audubon Socy, Inc. v. Davis, 307 F.3d 835, 84647 (9th Cir. 2002)

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(suit barred against Governor and state Secretary of Resources, because they did not have

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requisite connection to Proposition 4 banning the use of certain traps and poisons to capture or

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kill wildlife in California; however, the court held Eleventh Amendment did not bar suit against

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Director of California Department of Fish and Game, who has direct authority over and principal

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responsibility for enforcing Proposition 4); cf. Coalition to Defend Affirmative Action v. Brown,

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674 F.3d 1128, 113235 (9th Cir. 2012) (affirming denial of Eleventh Amendment immunity to

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President of University of California because he had fairly direct connection to enforcement of

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challenged statute in that as President he is duty-bound to enforce statute as oppose to simply

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implementing it . . .the buck stops with him).

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Accordingly, the court GRANTS the motion as to defendant Governor Brown.

B.

Free Speech and Free Exercise (As-Applied)

The court next looks at whether plaintiffs have stated an as-applied challenge

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under their free speech and free exercise claims, the sole claims advanced in the first amended

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complaint. After granting defendants previous motion to dismiss because plaintiffs provided

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insufficient factual allegations to state a claim, the court allowed plaintiffs to amend the as-

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applied challenges based on plaintiffs free speech and free exercise claims to include additional

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factual allegations. The court is unpersuaded that the factual allegations in the first amended

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complaint are sufficient to state a claim.

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Defendants argue plaintiffs have not pled an as-applied challenge under the free

speech or free exercise clauses of the First Amendment, because the first amended complaint

contains no allegations that SB 1172 has been applied or enforced against plaintiffs at all, let

alone in an impermissible or selective manner. Mot. at 10. Defendants further argue that

plaintiffs have not alleged any facts to show they intended to continue their practice, and thereby

violate the statute. Id. Plaintiffs contend defendants argument ignores plaintiffs allegation that

they wish to engage in certain practices that are prohibited by SB 1172. Plaintiffs also argue that

[a] professional need not engage in the prohibited practice and subject himself to the punishment

of the challenged law for it to be considered applied against him. Oppn at 7. Plaintiffs argue

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their allegation further reveals defendants application of SB 1172 displays hostility towards

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[p]laintiffs religious conviction. Oppn at 10.

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An as-applied First Amendment challenge contends that a given statute or

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regulation is unconstitutional as it has been applied to a plaintiffs particular activity. Foti v. City

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of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998) (citing Members of City Council v. Taxpayers

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for Vincent, 466 U.S. 789, 803 & n.22 (1984)); see also Legal Aid Servs. of Oregon v. Legal

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Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010). Here, plaintiffs provide no factual allegations

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to demonstrate SB 1172s unconstitutionality as applied to their activities. In other words,

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plaintiffs have not pointed to any action by defendants and alleged that defendants applied SB

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1172 differently to plaintiffs than to others. See, e.g., Hoye v. City of Oakland, 653 F.3d 835, 852

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(9th Cir. 2011) (an enforcement policy is not neutral where the citys policy of enforcement

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distinguishes between speech that facilitates access and speech that discourages access to clinics).

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Simply alleging in conclusory fashion that defendants application of SB 1172 to plaintiffs is

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hostile is insufficient. Though plaintiffs allege that they sought clarification with respect to the

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scope of the statute from defendants but were ignored, unanswered requests for clarification do

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not amount to unequal enforcement, enforcement at all or differential application by defendants,

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especially in light of the Ninth Circuits decision on the scope and application of SB 1172.

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Pickup, 740 F.3d at 122324. Furthermore, defendants did respond to plaintiffs request,

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informing them that it would be unlawful to provide SOCE to children under eighteen years old.
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Plaintiffs otherwise provide only broad allegations that echo the facial challenges

rejected by the Ninth Circuit. See id at 1236 (SB 1172 did not violate the free speech rights of

SOCE practitioners or minor patients, is neither vague nor overbroad, and does not violate

parents fundamental rights.).

The court previously has allowed plaintiffs leave to amend to include additional

factual allegations in support of their as-applied challenges. Nothing before the court suggests

plaintiffs could further amend to state a claim. Accordingly, defendants motion to dismiss is

GRANTED without leave to amend.

V.

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CONCLUSION
Defendants motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND.

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This order resolves ECF No. 129. CASE CLOSED.

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IT IS SO ORDERED.

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DATED: August 8, 2016.

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UNITED STATES DISTRICT JUDGE

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