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Pickup v. Brown

United States District Court, E.D. California

August 8, 2016

DAVID PICKUP, et al., Plaintiffs,
EDMUND G. BROWN JR., Governor of the State of California, in his official capacity, et al., Defendants, and EQUALITY CALIFORNIA, Intervenor- Defendant.


         This 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. /////


         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 professionals[1] 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. 81.

         Plaintiffs 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 rights.” Id.

         Following 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.

         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.


         The 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.

         The 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.

         With 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, 172.

         Plaintiffs 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.


         A 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).

         A party 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 ...

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