Robles v. In the Name of Humanity, We Refuse to Accept a Fascist America et al
Filing
51
ORDER GRANTING THE REGENTS MOTION TO DISMISS; GRANTING BERKELEYS MOTION TO DISMISS; AND GRANTING IN PART MIRABDALS MOTION TO DISMISS OR STRIKE PURSUANT TO ANTISLAPP STATUTE by Judge Claudia Wilken. Amended Pleadings due by 6/25/2018. (dtmS, COURT STAFF) (Filed on 6/4/2018)
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United States District Court
Northern District of California
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KIARA ROBLES,
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Plaintiff,
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Case No. 17-cv-04864-CW
v.
IN THE NAME OF HUMANITY, WE
REFUSE TO ACCEPT A FASCIST
AMERICA, et al.,
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Defendants.
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ORDER GRANTING THE REGENTS’
MOTION TO DISMISS; GRANTING
BERKELEY’S MOTION TO DISMISS;
AND GRANTING IN PART
MIRABDAL’S MOTION TO DISMISS
OR STRIKE PURSUANT TO ANTISLAPP STATUTE
(Dkt. Nos. 11, 16, 43)
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Plaintiff Kiara Robles filed this suit against Defendants In
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the Name of Humanity, We REFUSE to Accept a Fascist America
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(ANTIFA), The Regents of the University of California (Regents),
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University of California Police Department (UCPD), the City of
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Berkeley (Berkeley), Ian Dabney Miller, Raha Mirabdal, and DOES
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1-20.
Docket No. 15.
On October 2, 2017, Berkeley moved to
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dismiss the complaint.
Docket No. 11.
On October 4, 2017, the
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Regents also moved to dismiss the complaint.
Docket No. 16.
On
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February 8, 2018, Mirabdal moved to dismiss the complaint or to
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1
strike it pursuant to the anti-SLAPP statute.
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The Court found these motions to dismiss suitable for disposition
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on the papers.
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Court GRANTS Berkeley’s motion to dismiss, GRANTS the Regents’
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motion to dismiss, and GRANTS IN PART Mirabdal’s motion to
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dismiss or strike.
Having reviewed the papers and the record, the
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BACKGROUND
I.
Factual Background
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United States District Court
Northern District of California
Docket No. 43.
Unless otherwise noted, the factual background is taken from
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the complaint, which is assumed to be true for purposes of
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Defendants’ motions to dismiss or strike.
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Robles is a resident of Oakland, California.
Complaint at
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3.
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Yiannopoulos, a conservative gay media personality and political
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commentator, which was hosted at the University of California
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Berkeley (UC Berkeley) by a registered student organization.
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3-4, ¶ 44.
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Berkeley.
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Sproul Plaza to hear Yiannopoulos speak.
On February 1, 2017, she planned to attend a speech by Milo
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Id.
The Regents controls, administers, and manages UC
Id. ¶ 6.
Robles and others arrived at UC Berkeley’s
Id. at 3.
Around 1,500 protestors associated with ANTIFA also gathered
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at Sproul Plaza.
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American, left wing, anti-Trump, non-profit organization that
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organizes demonstrations to achieve its political agenda.”
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at 4.
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ANTIFA orchestrated the violence in order to disrupt the
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Yiannopoulos event.
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interviewed by news station KGO-TV about her thoughts related to
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the event, protestors surrounded her “combatively” and yelled
Id.
According to Robles, ANTIFA is “a radical
ANTIFA protestors soon “erupted into violence.”
Id. ¶ 48.
Id.
Id. at 3.
While Robles was being
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that she was a “fascist.”
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masked and unmasked assailants with pepper spray and bear mace.
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Id. at 3, ¶¶ 50-51.
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Id. ¶ 49.
Robles was attacked by both
At the time of the attack, there were “no campus police
close enough to Robles to protect her from her assaulter.”
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¶ 52.
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members waited in the Student Union building, within eyesight of
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the violence happening outside, watching the protestors become
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United States District Court
Northern District of California
5
more belligerent and dangerous.”
Id.
Robles alleges that “nearly 100 campus police and SWAT
Id. (emphasis omitted).
Robles
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alleges that officers from UCPD and the City of Berkeley Police
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Department (BPD) could see the attacks, yet they did not act to
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protect any of the victims.
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Id. ¶ 54.
Soon after, Robles and others were again attacked by
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protestors.
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face and body with flagpoles” until she “was forced to escape by
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jumping over a metal barrier.”
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ANTIFA protestor, and several unknown assailants “surrounded” her
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“combatively,” and Mirabdal “shined a flashlight aggressively” in
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Robles’ face, “blinding” her and “placing her in fear and
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apprehension of harm.”
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assisted Robles or apprehended her attackers.
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II.
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Miller, an ANTIFA protestor, “struck” Robles “in the
Id. ¶ 55.
Id. ¶ 64.
Mirabdal, another
Again, neither the UCPD or BPD
Id. ¶ 66.
Procedural Background
On June 5, 2017, Robles filed a related suit, Robles I,
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against nearly all of the Defendants in the present suit -- the
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Regents, UCPD, BPD, ANTIFA, Miller and Mirabdal -- as well as
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several others -- Janet Napolitano, President of the University
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of California; Monica Lozano, Chair of the Regents; Nicholas
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Dirks, Chancellor of UC Berkeley; the Coalition to Defend
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Affirmative Action, Integration, & Immigrant Rights, and Fight
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for Equality by Any Means Necessary; Jesse Arreguin, mayor of
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Berkeley; Margo Bennett, Chief of the UCPD; Andrew Greenwood,
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Chief of the BPD; John Burton, California Democratic Party
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Chairman; Nancy Pelosi, Minority Leader of the House of
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Representatives; George Soros, an individual; and DOES 1-20.
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Robles I, Case No. 17-3235, Docket No. 1.
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complaint, she asserted claims for: (1) violation of First
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United States District Court
Northern District of California
1
Amendment rights under 42 U.S.C. § 1983; (2) violation of Equal
Id.
In her Robles I
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Protection rights under 42 U.S.C. § 1983; (3) negligence;
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(4) gross negligence; (5) premises liability; (6) negligent
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infliction of emotional distress; (7) intentional infliction of
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emotional distress; (8) assault; (9) battery; and (10) violation
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of Bane Act, California Civil Code section 52.1.
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13, 2017, BPD, Arreguin, and Greenwood moved to dismiss the
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complaint.
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Bennett, Dirks, Lozano, and Napolitano also moved to dismiss the
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complaint.
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dismiss the complaint.
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could be decided, Robles requested that the undersigned
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voluntarily recuse from the case.
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request was denied on July 25, 2017.
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that same day, Robles voluntarily dismissed the case.
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Docket No. 57.
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Id., Docket No. 46.
Id., Docket No. 51.
Id.
On July
On July 17, 2017, the Regents,
One day later, Soros moved to
Id., Docket No. 52.
Before the motions
Id., Docket No. 50.
This
Id., Docket No. 56.
On
Id.,
Less than a month later, on August 22, 2017, Robles filed
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the instant suit, Robles II, against the Regents, Berkeley, UCPD,
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ANTIFA, Miller, and Mirabdal.
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the same set of facts as Robles I and nearly the same set of
Docket No. 1.
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Robles II involves
asserted claims, adding only one additional claim for a violation
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of the Ralph Act, California Civil Code section 51.7.
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Berkeley filed a motion to relate the two cases, which the Court
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granted.
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Berkeley, the Regents, and Mirabdal have moved to dismiss or
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strike the complaint.
Docket Nos. 11, 16, 43.
On October 24,
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2017, Miller filed an answer to the complaint.
Docket No. 26.
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The UCPD and ANTIFA have not filed an answer or motion to
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United States District Court
Northern District of California
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dismiss.1
Robles I, Case No. 17-3235, Docket Nos. 58, 59.
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Id.
LEGAL STANDARD
A complaint must contain a “short and plain statement of the
12
claim showing that the pleader is entitled to relief.”
13
Civ. P. 8(a).
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a claim to relief that is plausible on its face.”
15
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
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Twombly, 550 U.S. 544, 570 (2007)).
17
12(b)(6) for failure to state a claim, dismissal is appropriate
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only when the complaint does not give the defendant fair notice
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of a legally cognizable claim and the grounds on which it rests.
20
Twombly, 550 U.S. at 555.
21
the plaintiff pleads factual content that allows the court to
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draw the reasonable inference that the defendant is liable for
23
the misconduct alleged.”
24
Fed. R.
The plaintiff must proffer “enough facts to state
Ashcroft v.
On a motion under Rule
A claim is facially plausible “when
Iqbal, 556 U.S. at 678.
In considering whether the complaint is sufficient to state
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1
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As Robles has not filed proof of service for these
entities, the Court cannot determine whether these parties have
been served within the ninety-day time limit of Federal Rule of
Civil Procedure 4(m). Robles shall file proof of service within
fourteen days of this order.
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a claim, the court will take all material allegations as true and
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construe them in the light most favorable to the plaintiff.
3
Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049,
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1061 (9th Cir. 2008).
5
of the complaint, materials incorporated into the complaint by
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reference, and facts of which the court may take judicial notice.
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Id. at 1061.
8
conclusions, including threadbare “recitals of the elements of a
9
United States District Court
Northern District of California
1
cause of action, supported by mere conclusory statements.”
10
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
11
The court’s review is limited to the face
However, the court need not accept legal
When granting a motion to dismiss, the court is generally
12
required to grant the plaintiff leave to amend, even if no
13
request to amend the pleading was made, unless amendment would be
14
futile.
15
Inc., 911 F.2d 242, 246-47 (9th Cir. 1990).
16
whether amendment would be futile, the court examines whether the
17
complaint could be amended to cure the defect requiring dismissal
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“without contradicting any of the allegations of [the] original
19
complaint.”
20
Cir. 1990).
21
22
23
Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv.
In determining
Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th
DISCUSSION
I.
The Regents’ Motion to Dismiss
Robles asserts nine claims against the Regents: violation of
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her First Amendment rights based on the Regents’ alleged
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withholding of police protection; violation of equal protection
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based on her sexual orientation and political viewpoint;
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negligence; gross negligence; premises liability; negligent
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infliction of emotional distress; intentional infliction of
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1
emotional distress; violation of California’s Bane Act; and a
2
claim for injunctive relief.
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these claims should be dismissed.
The Regents contend that all of
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A.
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The Regents first asserts that Robles’ First Amendment and
Eleventh Amendment
equal protection claims are barred by the Eleventh Amendment.
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Robles brings both of these claims pursuant to 42 U.S.C. § 1983,
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which creates a federal right of action against “[e]very person”
9
United States District Court
Northern District of California
6
who, under color of law, deprives a person of federal
10
constitutional rights.
11
Dep’t of State Police, 491 U.S. 58, 68 (1989).
12
established that states and governmental entities considered
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“arms of the State” are immune from suits brought in federal
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court under the Eleventh Amendment and are not “persons” subject
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to suit under § 1983.
16
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 (1984).
17
Ninth Circuit has ruled on multiple occasions that the “Regents,
18
a corporation created by the California constitution, is an arm
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of the state for Eleventh Amendment purposes, and therefore is
20
not a ‘person’ within the meaning of section 1983.”
21
Meyers, 964 F.2d 948, 949–50 (9th Cir. 1992).
22
v. Univ. of California, Los Angeles, 858 F.2d 1394, 1395 (9th
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Cir. 1988) (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1360 (9th
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Cir. 1982)) (holding that the Regents is “considered to be an
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instrumentalit[y] of the state, and therefore enjoy[s] the same
26
immunity as the state of California.”) (internal quotation marks
27
and citations omitted).
28
Regents cannot be sustained.
See 42 U.S.C. § 1983; Will v. Michigan
It is well-
Will, 491 U.S. at 70-71; Pennhurst State
The
Armstrong v.
See also BV Eng’g
Thus, Robles’ § 1983 claims against the
7
1
The Eleventh Amendment also bars Robles’ state law claims
against the Regents.
3
claims which are brought into federal court under pendent
4
jurisdiction.
5
This is because pendent jurisdiction, a judge-made doctrine of
6
discretion based on considerations of efficiency, cannot override
7
the Eleventh Amendment, a “constitutional limitation on the
8
authority of the federal judiciary to adjudicate suits against
9
United States District Court
Northern District of California
2
the State.”
10
The Eleventh Amendment bars state law
Pennhurst State Sch. & Hosp., 465 U.S. at 121.
Id. at 121-23.
Accordingly, Robles’ state law
claims against the Regents are also barred.
11
Robles argues that the Regents is not entitled to immunity
12
under the Eleventh Amendment in this case because it was not
13
functioning as an arm of the state.
14
Circuit’s decision in Doe v. Lawrence Livermore Nat. Lab., 65
15
F.3d 771, 775 (9th Cir. 1995), which was reversed by the Supreme
16
Court in Regents of the Univ. of California v. Doe, 519 U.S. 425
17
(1997), Robles argues that the Regents “is an enormous entity
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which functions in various capacities and which is not entitled
19
to Eleventh Amendment immunity for all of its functions.”
20
at 6.
21
of police protection during the event had nothing to do with any
22
official functions, but rather the Regents’ own personally held
23
beliefs.
24
Relying on the Ninth
Opp.
Robles contends that the Regents’ intentional withholding
Robles’ argument is misguided.
Even assuming that it was
25
not overruled by the Supreme Court in Regents, the holding in Doe
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cited by Robles merely notes that there are exceptions to
27
immunity for certain types of actions.
28
example, the Doe court cited cases where immunity did not apply
8
Doe, 65 F.3d at 775.
For
to the Regents because “Congress has abrogated [its] immunity
2
from suit in federal court for violation of patent law” and it
3
“waived its Eleventh Amendment immunity by signing a government
4
contract that contemplated possible suits against it in federal
5
court and by entering into a federally regulated area.”
6
Robles fails to explain why an exception applies to this
7
situation.
8
precedent holds that the Regents “is an arm of the state for
9
United States District Court
Northern District of California
1
Eleventh Amendment purposes,” “is not a ‘person’ within the
10
meaning of section 1983,” and therefore is immune to § 1983
11
claims.
12
provide any reason to depart from this precedent.
13
is about the Regents’ intent in allegedly withholding police
14
protection, but the Regent’s intent is not relevant to the
15
analysis.
16
Id.
Indeed, as discussed above, controlling Ninth Circuit
See Armstrong, 964 F.2d at 949–50.
Robles does not
Her argument
Accordingly, the Eleventh Amendment bars all of Robles’
17
claims against the Regents, which are dismissed from the case.
18
The Court therefore need not discuss the Regents’ other grounds
19
for dismissal.
20
In a footnote, Robles seeks leave to amend her claims “to
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add the individual decision and policy makers responsible for
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ordering the stand-down to UCPD during the Mr. Yiannopoulos
23
event.”
24
be futile because Robles already named several individual
25
defendants in Robles I, alleging no facts showing that these
26
individuals acted in their personal capacities, and then did not
27
name the individual defendants at all in Robles II.
28
is not clear that amendment would be futile, Robles’ request for
Opp. at 6 n.14.
The Regents argues that amendment would
9
Because it
1
leave to amend her claims against the Regents is granted.
2
may attempt to avoid Eleventh Amendment immunity by alleging
3
these claims against individual actors in their personal
4
capacities.
5
II.
6
Robles
Berkeley’s Motion to Dismiss
Berkeley moves to dismiss Robles’ claims based on the
following grounds: (1) with respect to the first and second
8
claims, failure to state a claim for Monell liability; (2) with
9
United States District Court
Northern District of California
7
respect to the sixth, seventh, and tenth claims, failure to
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exhaust administrative remedies; and (3) with respect to the
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twelfth claim, failure to state a claim for injunctive relief.
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A.
13
Robles brought her first and second claims against Berkeley
Monell liability
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pursuant to 42 U.S.C. § 1983, alleging that Berkeley violated her
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First and Fourteenth Amendment rights by willfully withholding
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police protection at the Yiannopoulos event.
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Berkeley contends that Robles’ § 1983 claims are not tenable
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because she does not allege that they were carried out according
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to a municipal policy or custom.
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local government may not be sued under § 1983 for an injury
21
inflicted solely by its employees or agents.”
22
Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).
23
Instead, a municipality only faces liability under § 1983 when
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the “execution of a government’s policy or custom, whether made
25
by its lawmakers or by those whose edicts or acts may fairly be
26
said to represent official policy, inflicts the injury.”
27
Robles alleges that Berkeley police officers, at the direction of
28
the Regents, chose to withhold their aid to the attendees of the
It is well-established that “a
10
Monell v. Dep’t of
Id.
event due to the officers’ animus against those who do not
2
subscribe to their “ultra-leftist, radical philosophies.”
3
at 3-4 (quoting Complaint ¶¶ 25, 27-42).
4
alternative reasons for the Berkeley police officers’ actions:
5
they either followed the direction of the Regents or had personal
6
animus against the event participants.
7
Berkeley implemented a custom or policy that caused Robles’
8
constitutional injury.
9
United States District Court
Northern District of California
1
deliberately indifferent to the fact that training or supervision
Opp.
Robles gives two
Neither shows that
Nor does Robles allege that Berkeley was
10
was required to prevent constitutional violations.
11
Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 407 (1997).
12
Accordingly, Robles’ first and second claims must be dismissed.
Bd. of Cty.
13
B.
14
Berkeley contends that Robles did not present her state law
Government Tort Claims Act
15
claims to the city prior to filing them in federal court, and
16
thus did not administratively exhaust her claims.
17
California Tort Claims Act, “a plaintiff must timely file a claim
18
for money or damages with the public entity” before bringing suit
19
against that entity.”
20
County (Bodde), 32 Cal. 4th 1234, 1237 (2004) (citing Cal. Gov.
21
Code § 900 et seq.).
22
from bringing suit against that entity.”
23
this is not only a procedural requirement, but “a condition
24
precedent to plaintiff’s maintaining an action against
25
defendant,” the plaintiff must plead compliance with this
26
condition precedent in her complaint.
27
28
Under the
California v. Superior Court of Kings
“The failure to do so bars the plaintiff
Id.
Moreover, because
Id. at 1240.
Robles does not contest that she did not comply with the
California Tort Claims Act.
Instead, she argues that she was not
11
required to do so because it would have been futile.
2
plaintiff need not pursue administrative remedies where the
3
agency’s decision is certain to be adverse.”
4
San Diego, 184 Cal. App. 4th 1422, 1430 (2010).
5
Robles, it would have been futile to seek administrative relief
6
because a “favorable decision would force BPD to admit that they
7
willfully ignored their sworn duties and withheld their services
8
based on political and other biases.”
9
United States District Court
Northern District of California
1
insufficient to establish application of the futility exception,
10
which requires a plaintiff to show “that the agency has declared
11
what its ruling will be on a particular case.”
12
App. 4th at 1430 (internal quotation marks and brackets omitted).
13
Robles does not allege that Berkeley ever declared that it would
14
reject her claims.
15
claims cannot also serve as Berkeley’s rejection of those same
16
claims.
17
Robles’ state law claims against Berkeley must be dismissed.
“A
Howard v. Cty. of
According to
Opp. at 5.
This is
Howard, 184 Cal.
Berkeley’s actions giving rise to Robles’
Thus, the futility exception does not apply here and
18
C.
19
Berkeley correctly contends that Robles’ twelfth claim, for
Injunctive Relief Claim
20
injunctive relief, is improper because injunctive relief is a
21
remedy, not a cause of action.
22
Capital, Inc., 595 F. App’x 680, 684 (9th Cir. 2014).
23
Accordingly, it must be dismissed.
24
Ajetunmobi v. Clarion Mortg.
In sum, all of Robles’ claims against Berkeley must be
25
dismissed.
26
second claims to attempt to state a claim for Monell liability.
27
Because Robles concedes that she did not present her claims to
28
the city pursuant to the California Tort Claims Act, and the
The Court grants Robles leave to amend her first and
12
1
Court has already found that it would not have been futile to do
2
so, amendment of her sixth, seventh, and tenth claims would
3
appear to be futile.
Thus, the Court will not grant leave to
4
amend these claims.2
The Court also will not grant leave to amend
5
the twelfth claim for injunctive relief because amendment would
6
be futile.
7
III. Mirabdal’s Motion to Dismiss or Strike
A.
9
United States District Court
Northern District of California
8
Mirabdal asserts that the complaint fails sufficiently to
Motion to Dismiss
10
plead the assault, battery, and Bane Act claims asserted against
11
her.
12
refer to Mirabdal are as follows:
13
14
15
16
17
18
19
20
21
22
The only factual allegations in the complaint that directly
62. Mirabdal was also present at the Milo Yiannopoulos
event.
63. Mirabdal is a member of the radical American, left
wing, anti-Trump, non-profit organization funded by
George Soros, ANTIFA, and carried out the assault on
Plaintiff Robles at the direction of ANTIFA and in
concert with each and every Defendant.
64. After Mirabdal and several unknown assailants
surrounded Plaintiff Robles combatively, Mirabdal
shined a flashlight aggressively in Plaintiff Robles’
face, blinding Plaintiff Robles and placing her in fear
and apprehension of harm.
65. Mirabdal further beat peaceful Milo Yiannopoulos
supporters with a wooden sign post during the UC
Berkeley riot.
In short, Robles alleges only that Mirabdal “surrounded” her
23
“combatively” and “shined a flashlight aggressively” in her face,
24
“blinding” her and “placing her in fear and apprehension of
25
26
27
28
2
Robles may, however, seek leave to amend if she can allege
new facts showing compliance with the California Tort Claims Act.
Cf. California, 32 Cal. 4th at 1243-44 (discussing mechanisms to
present a late claim).
13
1
2
3
harm.”
1.
Battery
In California, the elements of battery are: “(1) defendant
touched plaintiff, or caused plaintiff to be touched, with the
5
intent to harm or offend plaintiff; (2) plaintiff did not consent
6
to the touching; (3) plaintiff was harmed or offended by
7
defendant’s conduct; and (4) a reasonable person in plaintiff's
8
position would have been offended by the touching.”
9
United States District Court
Northern District of California
4
City & Cty. of San Francisco, 258 F. Supp. 3d 977, 998 (N.D. Cal.
10
11
Lawrence v.
2017) (quoting So v. Shin, 212 Cal. App. 4th 652, 669 (2013)).
Mirabdal contends that the complaint fails to state a claim
12
for battery because it does not allege that Mirabdal actually
13
touched Robles.
14
directly touch the plaintiff; rather, “any forcible contact
15
brought about by an object or substance thrown or launched or set
16
in motion by a defendant” could satisfy the touch requirement.
17
Inter-Ins. Exch. of Auto. Club of S. Cal. v. Lopez, 238 Cal. App.
18
2d 441, 445 (1965).
19
caused the flashlight’s beam to “touch” Robles.
20
Robles responds that a defendant need not
Robles’ theory of liability is that Mirabdal
Robles’ theory appears to raise an issue of first
21
impression: whether shining a light beam at someone constitutes
22
touching sufficient to satisfy the first element of battery under
23
California law.
24
“particulate matter,” has the physical properties capable of
25
making contact.
26
Communications, 92 Ohio App. 3d 232, 235 (1994).
27
argues, however, that light, unlike smoke, is intangible.
28
further argues that tort law “has long distinguished between
Courts have held that tobacco smoke, as
See, e.g., Leichtman v. WLW Jacor
14
Mirabdal
She
1
tangible and intangible invasions and has deemed invasions by
2
light to be the latter.”
3
(2d Cir. 2008).
4
noise or vibrations” -- i.e., intangible invasions -- “across or
5
onto the land of another.”
6
In re WorldCom, Inc., 546 F.3d 211, 219
Thus, “it is not trespass to project light,
Id.
The Court does not find Mirabdal’s distinction between light
and smoke to be persuasive.
8
context of criminal battery that common-law battery may be
9
United States District Court
Northern District of California
7
accomplished by using an intangible substance, such as light.
The Supreme Court has stated in the
10
See United States v. Castleman, 134 S. Ct. 1405, 1414–15 (2014)
11
(“‘[A] battery may be committed by administering a poison or by
12
infecting with a disease, or even by resort to some intangible
13
substance,’ such as a laser beam.”).
14
A Virginia Court of Appeals case considering a similar issue
15
is instructive.
16
whether shining a laser at someone constitutes touching for the
17
purpose of the crime of battery.
18
There, the court noted:
19
20
21
22
23
24
25
26
In Adams v. Virginia, the court considered
33 Va. App. 463, 469 (2000).
Because substances such as light or sound become
elusive when considered in terms of battery, contact by
means of such substances must be examined further in
determining whether a touching has occurred. Such a
test is necessary due to the intangible nature of those
substances and the need to limit application of such a
principle (touching by intangible substances) to
reasonable cases. Because the underlying concerns of
battery law are breach of the peace and sacredness of
the person, the dignity of the victim is implicated and
the reasonableness and offensiveness of the contact
must be considered. Otherwise, criminal convictions
could result from the routine and insignificant
exposure to concentrated energy that inevitably results
from living in populated society.
27
Id. at 469-70.
28
determining whether a battery has occurred, contact by an
Accordingly, the court held that “for purposes of
15
1
intangible substance such as light must be considered in terms of
2
its effect on the victim” and “to prove a touching, the evidence
3
must prove that the substance made objectively offensive or
4
forcible contact with the victim’s person resulting in some
5
manifestation of a physical consequence or corporeal hurt.”
6
at 470.
7
Id.
The same reasoning applies to the tort of battery, which
should be limited to reasonable cases.
9
United States District Court
Northern District of California
8
here was effected by an intangible substance, light, the Court
10
will closely scrutinize whether the substance “made objectively
11
offensive or forcible contact with the victim’s person resulting
12
in some manifestation of a physical consequence or corporeal
13
hurt,” which goes to the third and fourth elements of battery.
14
See id.
15
cause “some manifestation of physical consequence or corporeal
16
hurt”; for example, a high-intensity laser directed at a person’s
17
eye could cause lasting physical harm to the eye.
18
intangible substance causes no physical harm, however, it is
19
unlikely to be offensive in a reasonably objective way.
20
Thus, because the contact
It is conceivable that an intangible substance could
Where an
Here, Robles alleges that Mirabdal shined a flashlight beam
21
at her, “blinding” her.
22
such that she suffered serious, permanent physical eye injury,
23
then that would undoubtedly constitute physical harm, as Robles
24
suggests.
25
figurative rather than literal.
26
plead that she was harmed by the contact.
27
battery claim must be dismissed with leave to amend.
Opp at 4.
Complaint ¶ 64.
If Robles was “blinded”
However, this allegation appears to be
As a result, Robles has not
28
16
Accordingly, Robles’
2.
1
Assault
In California, a claim for assault requires a plaintiff to
2
show: “(1) defendant acted with intent to cause harmful or
3
offensive contact, or threatened to touch plaintiff in a harmful
4
or offensive manner; (2) plaintiff reasonably believed she was
5
about to be touched in a harmful or offensive manner or it
6
reasonably appeared to plaintiff that defendant was about to
7
carry out the threat; (3) plaintiff did not consent to
8
defendant’s conduct; (4) plaintiff was harmed; and
United States District Court
Northern District of California
9
(5) defendant’s conduct was a substantial factor in causing
10
plaintiff’s harm.”
Lawrence, 258 F. Supp. 3d at 998 (quoting So,
11
212 Cal. App. 4th at 668–69).
12
Mirabdal contends that the complaint does not allege that
13
she intentionally threatened to touch Robles in a harmful or
14
offensive manner, nor does it allege that Robles reasonably
15
believed she was about to be touched in a harmful or offensive
16
manner or that it reasonably appeared to her that Robles was
17
about to carry out the threat.
Robles responds that the
18
complaint alleges Mirabdal aggressively shined a flashlight in
19
her eyes and that Mirabdal, along with others, “surrounded” her
20
“combatively.”3
These allegations do not, however, show that
21
Mirabdal committed a “demonstration of an unlawful intent by one
22
person to inflict immediate injury on the person of another
23
then present.”
Plotnik v. Meihaus, 208 Cal. App. 4th 1590, 1603–
24
04 (2012).
In Plotnik, defendants approached the plaintiff
25
26
3
27
28
Robles’ allegation that Mirabdal beat other individuals
with a wooden sign post is inapposite because Robles does not
contend that Mirabdal did so in a way that threatened Robles.
17
1
“aggressively” and threatened to beat and kill him.
2
The court held that, while the defendants’ “actions and words
3
were aggressive and threatening,” they did not commit an act that
4
“could or was intended to inflict immediate injury on Plotnik.”
5
Id. (internal punctuation and brackets omitted).
6
did not display a weapon, take a swing at him, or otherwise
7
attempt to touch him.
8
United States District Court
Northern District of California
9
Id. at 1604.
The defendants
Id.
The same is true here.
Robles’s allegations do not
establish that Mirabdal committed an act that could or was
10
intended to inflict immediate injury on Robles.
11
alleged acts surrounding Robles “combatively” and shining a
12
flashlight in her face were not intended to inflict immediate
13
injury on Robles.
14
Moreover, as discussed above, Robles has not established that
15
shining a flashlight at her constitutes harmful contact or
16
contact that is offensive in an objectively reasonably way.
17
follows that Mirabdal’s acts leading up to shining the flashlight
18
at Robles cannot constitute an act with intent to cause harmful
19
or offensive contact, or a threat to touch Robles in a harmful or
20
offensive manner.
21
to amend.
22
23
3.
Mirabdal’s
Nor were those acts threats to do so.
It
Thus, this claim must be dismissed with leave
Bane Act
The Bane Act authorizes a civil action for damages,
24
injunctive relief, and other appropriate equitable relief against
25
a person who “interferes by threat, intimidation, or coercion, or
26
attempts to interfere by threat, intimidation, or coercion, with
27
the exercise or enjoyment by any individual or individuals of
28
rights secured by the Constitution or laws of the United States,
18
1
or of the rights secured by the Constitution or laws of this
2
state.”
3
intended to address only egregious interferences with
4
constitutional rights, not just any tort.”
5
Los Angeles, 203 Cal. App. 4th 947, 959 (2012).
6
interference with a constitutional right must itself be
7
deliberate or spiteful.”
8
United States District Court
Northern District of California
9
Cal. Civ. Code § 52.1(a) and (b).
The Bane Act “was
Shoyoye v. Cty. of
“The act of
Id.
Robles alleges that Mirabdal’s acts of surrounding her and
thus preventing her escape and shining a flashlight at her
10
interfered with her right to assemble peacefully.
11
challenges that the allegations involving herself do not rise to
12
the level of “threat, intimidation, or coercion” sufficient to
13
state a claim under the Bane Act.
14
supporting her argument.
15
must be denied.
Mirabdal
But Mirabdal cites no case
Mirabdal’s motion to dismiss this claim
16
B.
17
The California anti-SLAPP statute provides for a “special
Motion to Strike
18
motion to strike” for a “cause of action against a person arising
19
from any act of that person in furtherance of the person’s right
20
of petition or free speech,” “unless the court determines that
21
the plaintiff has established that there is a probability that
22
the plaintiff will prevail on the claim.”
23
§ 425.16.
24
ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963,
25
973 (9th Cir. 1999).
26
Cal. Code Civ. Proc.
The anti-SLAPP statute applies in federal court.
U.S.
To resolve an anti-SLAPP motion, the court engages in a two-
27
step process.
28
has made a threshold showing that the challenged cause of action
“First, the court decides whether the defendant
19
1
is one arising from protected activity.”
2
v. LaMarche, 31 Cal. 4th 728, 733 (2003).
3
burden to show that her acts were “taken in furtherance of [her]
4
right of petition or free speech under the United States or
5
California Constitution in connection with a public issue.”
6
“If the court finds such a showing has been made, it then
7
determines whether the plaintiff has demonstrated a probability
8
of prevailing on the claim.”
United States District Court
Northern District of California
9
Jarrow Formulas, Inc.
The defendant has the
Id.
Id.
Mirabdal asserts that she was engaging in a protected
10
activity, protesting against Yiannopoulos.
11
the anti-SLAPP statute provides for four types of protected
12
activity.
13
Robles or surrounding her combatively, was not a written or oral
14
statement, and so it does not qualify under subsections one
15
through three, leaving only the possibility of subsection four.
16
§ 425.16(e).
17
at Robles or surrounding her combatively constitutes “conduct in
18
furtherance of the exercise of the constitutional right of
19
petition or the constitutional right of free speech in connection
20
with a public issue or an issue of public interest.”
21
Civ. Proc. § 425.16(e).
22
burden of showing that she engaged in a protected activity and
23
her motion must be denied.
24
Section 425.16(e) of
Mirabdal’s alleged conduct, shining a flashlight at
Mirabdal does not explain how shining a flashlight
Cal. Code
As a result, she has not satisfied her
CONCLUSION
25
The Court GRANTS Berkeley’s motion to dismiss (Docket No.
26
11), GRANTS the Regents’ motion to dismiss (Docket No. 16), and
27
GRANTS IN PART Mirabdal’s motion to dismiss or strike (Docket No.
28
43).
Robles may file an amended complaint as permitted by this
20
1
2
3
4
order within twenty-one days.
Robles shall file proof of service within fourteen days of
this order.
IT IS SO ORDERED.
5
6
Dated: June 4, 2018
CLAUDIA WILKEN
United States District Judge
7
8
United States District Court
Northern District of California
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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28
21
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