A'Ghobhainn v. City of L. A.

1

CORY MAC A'GHOBHAINN, Plaintiff, v. CITY OF LOS ANGELES, et al., Defendants.

No. 2:23-cv-07613-SP

United States District Court, C.D. California

September 17, 2024

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR JUDMENT ON THE PLEADINGS

Sheri Pym, United States Magistrate Judge

I. INTRODUCTION

On July 10, 2023, plaintiff Cory Mac A'Ghobhainn filed a complaint in Los Angeles County Superior Court against defendants City of Los Angeles and Los Angeles Police Department (“LAPD”) Officer Karen A. Cruz and Sergeant Alexander Kim. Plaintiff alleges defendants violated her rights to protest using amplified sound and freely move and assemble. Defendants removed the action to this court on September 13, 2023.

Plaintiff asserts seven causes of action, claiming violations of: (1) California Civil Code § 52.1 (“Bane Act”); (2) California Civil Code § 51.7 (“Ralph Act”); (3) Welfare & Institutions Code § 15610.63 (abuse of elder person); (4) California Code of Civil Procedure § 526a (waste of public funds); (5) the California Constitution's rights of liberty of speech and assembly, due process, and equal protection; (6) freedom of speech and assembly and viewpoint discrimination under the First Amendment and freedom of movement under the Fourteenth Amendment of the United States Constitution brought under 42 U.S.C. § 1983; and (7) declaratory relief. Plaintiff prays for declaratory and injunctive relief, damages and penalties, and attorney's fees.

On July 15, 2024, defendants filed a motion for judgment on the pleadings and a request for judicial notice. Plaintiff opposed the motion on July 23, 2024. Defendants filed a reply on July 30, 2024. The court held a hearing on the motion on August 27, 2024.

For the reasons that follow, the court grants in part and denies in part defendants' motion for judgment on the pleadings.

II. ALLEGATIONS OF THE COMPLAINT

On October 3, 2022, plaintiff participated in a protest of a “controversial animal killing event” that involves swinging chickens around in the air and discarding them in order to “visualize what death is.”^[1] At all times, plaintiff was on public property.

Defendant Cruz and other LAPD officers ordered plaintiff and the other protestors not to chant or use amplified sound, and threatened them with arrest if they did. Cruz also threatened plaintiff with arrest if she entered a public alleyway.

Plaintiff asked to speak with Cruz's sergeant, defendant Kim. Kim also threatened to place plaintiff under arrest if she used amplified sound. Kim claimed the arrest would be based on a private person's arrest by the organizers of the event and the arrest would not be a cite and release.

Due to defendants' threats, plaintiff and the other protestors did not use amplified sound even though such speech was protected by the First Amendment and not prohibited by any statute. Meanwhile, the event organizer blared loud music from the strip mall parking lot where the event was held.

III. STANDARD OF REVIEW

A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is a “means to challenge the sufficiency of the complaint after an answer has been filed.” New.Net, Inc. v. Lavasoft, 356 F.Supp.2d 1090, 1115 (C.D. Cal. 2004). It is “functionally identical” to a Rule 12(b) motion to dismiss for failure to state a claim, differing only in that it is filed after pleadings are closed. See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989); Fed.R.Civ.P. 12(c).

In evaluating a motion for judgment on the pleadings, all material allegations in the complaint are accepted as true and construed in the light most favorable to the nonmoving party. See Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004) (citation omitted). “Judgment on the pleadings is limited to material included in the pleadings” and the court may not consider extrinsic evidence. Yakima Valley Mem'l Hosp. v. Wash. State Dep't of Health, 654 F.3d 919, 925 n.6 (9th Cir. 2011); see Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1990) (“[J]udgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment.”).

“A dismissal on the pleadings for failure to state a claim is proper only if ‘the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (quoting Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984)); see Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 591 (9th Cir. 2008).

IV. DISCUSSION

As an initial matter, in their motion defendants generally argue that any claims plaintiff previously litigated are barred by collateral estoppel or res judicata, but they do not actually point to any particular claim they contend is precluded. Plaintiff argues there are differences between this case and the earlier cases defendants cite. Although there are many commonalities with the prior cases, at a minimum the court finds defendants have not sufficiently demonstrated that the issues litigated in the prior cases are identical for any claim. See Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003) (for issue preclusion to bar relitigation the issues must be identical, actually litigated, and necessarily decided) (citations omitted); Ludido v. Superior Court, 51 Cal.3d 335, 341, 272 Cal.Rptr. 767, 795 P.2d 1223 (1990) (same) (citations omitted). As such, though the court has considered the cases defendants cite, defendants have not shown any of these cases precludes any of plaintiff's claims.

A. Request for Judicial Notice and Additional Exhibits

In support of their motion, defendants request the court take judicial notice of: (1) Superior Court docket for Animal Protection and Rescue League v. City of Los Angeles, et al., case no. 19STCV24522; (2) December 13, 2021 Court of Appeal decision in case no. B304781 (Superior Court case no. 19STCV24522); (3) Court of Appeal docket for Lisa Karlan, et al. v. City of Los Angeles, case no. B315168 (Superior Court case no. B3174454); (4) November 27, 2023 Court of Appeal opinion in case no. B315168; and (5) LAPD Directive No. 11.2. Docket no. 23. Both parties also submit declarations and exhibits. Defendants submit the declaration of Surekha A. Shepherd in support of the motion and exhibits (docket no. 22-1), and in support of her opposition plaintiff submits the declaration of Bryan Pease and exhibits (docket no. 24-1).

On a motion for judgment on the pleadings, the court is limited to the pleadings except it may “take judicial notice of court filings and other matters of public records.” Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); see Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (a court may take judicial notice of matters of public record); U.S. ex. rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (courts may take judicial notice of proceedings in other courts if the proceedings have a direct relation to the matters at issue). “But a court cannot take judicial notice of disputed facts contained in such public records.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018).

Plaintiff does not object to any of the exhibits except for LAPD Directive No. 11.2. Although plaintiff does not expressly object to defendant's request for judicial notice, she argues LAPD Directive No. 11.2 is inadmissible hearsay, not properly disclosed, and irrelevant. Opp. at 11. Because all of the exhibits attached to defendants' request for judicial notice are matters of public record, the court will take judicial notice of the authenticity and existence of them. With regard to the orders and opinions, the court may not take judicial notice of them “‘for the truth of the facts recited therein.'” Lee, 250 F.3d at 690 (citation omitted).

As for the Shepherd and Pease declarations, the court will not consider them or any of their exhibits except to the extent the court may take judicial notice of any public records or opinions.

B. Freedom of Speech and Assembly - California Constitution (Claim Five) and First Amendment (Claim Six)

In Claims Five and Six, plaintiff alleges defendants violated her freedom of speech and assembly under the California and U.S. Constitutions when they threatened to arrest her for using a sound amplifying device. Claim Six, brought under 42 U.S.C. § 1983, is asserted only against individual defendants Cruz and Kim in their individual capacities.

The First Amendment prohibits the government from abridging the freedom of speech or to peaceably assemble. U.S. Const. amend. I; Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1020-21 (9th Cir. 2009). This extends to expressive activities such as protests. U.S. v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).

To state a First Amendment claim, a plaintiff must allege that government action deterred or chilled plaintiff's speech and such deterrence was a motivating or substantial factor in defendant's conduct. Mendocino Env't Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999).

“The protections afforded by the First Amendment are nowhere stronger than” in the public forum. Berger v. City of Seattle, 569 F.3d 1029, 1036-37 (9th Cir. 2009). Nevertheless, the protections are not limitless. “Municipalities may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are: (1) content-n...