United States District Court, E.D. California
matter is before the court on defendants’ motion to
dismiss plaintiffs’ first amended complaint. Mot., ECF
No. 129. Equality California (EQCA) joined the motion. ECF
No. 130. Plaintiffs oppose, Opp’n, ECF No. 131, and
defendants have replied, Reply, ECF No. 132. The matter was
submitted as provided by Local Rule 230(g). As explained
below, the court GRANTS defendants’ motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) without leave
to amend. /////
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 professionals 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
men’s and lesbians’ thought patterns by reframing
desires, redirecting thoughts, or using hypnosis, with the
goal of changing sexual arousal, behavior, and
orientation.” ECF No. 123 (citations omitted). The
court denied plaintiffs’ motion for preliminary
injunction, because plaintiffs had not established a
likelihood of success on the merits of any claim.
See Order Denying Prelim. Inj., ECF No. 80. The
court also granted EQCA’s request to intervene. ECF No.
appealed. ECF No. 89. The Ninth Circuit affirmed this
court’s decision denying plaintiffs’ motion for
preliminary injunction in a decision consolidated with review
of another case from this court. Pickup v. Brown,
740 F.3d 1208, 1236 (9th Cir. 2013), cert. denied,
134 S.Ct. 2871 (2014), and cert. denied sub nom. Welch v.
Brown, 134 S.Ct. 2881 (2014). Confirming the application
of rational basis review, the Ninth Circuit held that 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
the Ninth Circuit’s decision, this court granted
defendants’ first motion to dismiss, which also was
joined by EQCA. ECF Nos. 112, 113, 123. The court granted
plaintiffs leave to amend as to their as-applied challenges
under claim one, violation of plaintiffs’ 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.
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.
court previously has reviewed the factual background of this
case in detail in past orders. The Ninth Circuit’s
opinion affirming the denial of a preliminary injunction also
reviews the facts. See ECF Nos. 80, 100, 123. The
court briefly reviews the facts as pled in the amended
complaint and relevant to the instant motion.
first amended complaint alleges that SB 1172 violates
plaintiffs’ rights to free speech and free exercise of
religion under the First Amendment. Specifically, plaintiffs
allege defendant Governor Brown signed SB 1172 into law on
September 29, 2012. FAC ¶ 19. The Governor responsible
for executing California law, and is directly responsible for
appointing, directing and supervising his cabinet
secretaries. FAC ¶ 16.
respect to the free speech claim, plaintiffs allege SB 1172
is unconstitutionally vague and does not survive strict
scrutiny or even rational basis review. FAC ¶¶
197-209. Under the second claim of right to free exercise of
religion, plaintiffs allege SB 1172 places a substantial
burden on plaintiffs’ religious beliefs and does not
survive strict scrutiny review. FAC ¶¶ 212-227.
Specifically, defendants’ application of SB 1172 has a
chilling effect on plaintiff Pickup’s counseling in
California, FAC ¶ 93, and as applied and enforced, SB
1172 prohibits plaintiffs, from exercising their religious
beliefs to help others by making SOCE counseling illegal.
See, e.g., FAC ¶¶ 93, 114, 134, 146, 158,
further allege they requested clarification from the
California Board of Behavior Sciences (BBS), a division of
defendant Secretary Cabellero’s Business, Consumer
Affairs, and Housing Agency, regarding the specific
application and enforcement of SB 1172. FAC ¶ 174.
Specifically, plaintiffs allege they wrote to inquire how
they can “provide such 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.
complaint need contain only a “short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), not “detailed
factual allegations, ” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). But this rule demands
more than unadorned accusations; “sufficient factual
matter” must make the claim at least plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Conclusory or formulaic recitations of a claim’s
elements do not alone suffice. Id. (quoting
Twombly, 550 U.S. at 555).
may thus move to dismiss for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). The motion may be granted only if the complaint
lacks a “cognizable legal theory” or if its
factual allegations do not support a cognizable legal theory.
Hartmann v. Cal. Dep’t of Corr. & Rehab.,
707 F.3d 1114, 1122 (9th Cir. 2013). In making this
context-specific evaluation, this court “must presume
all factual allegations of the complaint to be true and draw
all reasonable inferences in favor of the nonmoving
party.” Usher v. City of Los Angeles, 828 F.2d
556, 561 (9th Cir. 1987). This rule does not apply to
“‘a legal conclusion couched as a factual
allegation, ’” Papasan v. Allain, 478
U.S. 265, 286 (1986) quoted in Twombly, 550 U.S. at
555, nor to ...