1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRYAN BRATT, Case No.: 24-CV-1295 JLS (BLM)

12 Plaintiff,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART AS MOOT

DEFENDANT CITY OF

14 CARLSBAD POLICE DEPARTMENT,

CARLSBAD’S MOTION TO

CARLSBAD COMMUNITY THEATRE,

15 DISMISS AND DEFENDANT and DOES 1-100,

PATRONS OF THE ARTS

16 Defendants. FOUNDATION DBA CARLSBAD 17 COMMUNITY THEATER’S

MOTION TO DISMISS

18

19 (ECF Nos. 10, 11)

20

21 Presently before the Court are Defendant City of Carlsbad’s (the “City”) Motion to 22 Dismiss Plaintiff’s First Amended Complaint (“City Mot.,” ECF No. 10), the City’s 23 Memorandum of Points and Authorities in support thereof (“City Mem.,” ECF No. 10-1), 24 and Defendant Patrons of the Arts Foundation dba Carlsbad Community Theater’s 25 (“CCT”) Motion to Dismiss (“CCT Mot.,” ECF No. 11). Plaintiff Bryan Bratt (“Plaintiff”) 26 filed a single Opposition, purportedly to both Motions (“Opp’n,” ECF No. 13), to which 27 only the City filed a Reply (“City Reply,” ECF No. 16). The Court took both Motions 28 under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF 1 No. 15. 2 Having carefully considered Plaintiff’s First Amended Complaint (“FAC,” ECF 3 No. 8), the Parties’ arguments, and the law, the Court now GRANTS IN PART AND 4 DENIES IN PART AS MOOT the Motions. 5 BACKGROUND 6 I. Procedural Background 7 Plaintiff, proceeding pro se, initially filed his Complaint in state court on June 17, 8 2024, naming Carlsbad Police Department (“Carlsbad PD”), CCT, and DOES 1–100 as 9 Defendants. See ECF No. 1-3 (“Compl.”). The City subsequently removed the case, 10 asserting federal question jurisdiction based on Plaintiff’s 42 U.S.C. § 1983 claim and 11 supplemental jurisdiction as to his remaining causes of action.1 ECF No. 1 (“Notice of 12 Removal”) at 1–2. Plaintiff’s Complaint alleged that he “planned a peaceful protest” after 13 CCT made a decision that “unfairly cast [Plaintiff] in a negative light.” Compl. ¶ 2. On 14 June 24—just days before the scheduled protest— Carlsbad PD allegedly sent Plaintiff a 15 “cease and desist directive.” Id. ¶ 17. The directive purportedly ordered Plaintiff not to go 16 through with the protest and threatened him with legal consequences. Id. When Plaintiff 17 asked Carlsbad PD about the directive, “the department informed him that they had no 18 record of the incident.” Id. ¶ 18. Paradoxically, however, Carlsbad PD was able to “discuss 19 the specifics of the situation when pressed.” Id. Later, representatives from Carlsbad PD 20 supposedly told Plaintiff that “they typically do not issue cease and desist orders.” Id. ¶ 21. 21 Plaintiff was never afforded a hearing to contest the basis of the directive. Id. ¶ 20. Plaintiff 22 alleges the foregoing events led to his “social and professional ostracism,” thereby harming 23 him emotionally and economically. See id. ¶ 22. Plaintiff sought, among other things, a 24 declaratory judgment, compensatory and punitive damages, and a permanent injunction 25 prohibiting Defendants from violating Plaintiff’s constitutional rights further. See id. 26 27 28 1 The City claims Plaintiff erroneously sued Carlsbad PD and should have named the City. City Mem. 1 at Prayers/Submissions. 2 The City then filed a Motion to Dismiss, see ECF No. 2, which the Court granted on 3 August 19, 2024, see ECF No. 6 (“Order”). Specifically, the Court found Plaintiff’s state 4 law claims were subject to dismissal as Plaintiff failed to plead compliance with the 5 presentment and timing requirements of the California Government Claims Act. Order 6 at 4–6. Next, the Court found Plaintiff’s § 1983 claim was subject to dismissal as it was 7 untimely, and Plaintiff had failed to sufficiently plead municipal liability. Id. at 6–10. 8 However, in light of Plaintiff’s pro se status, the Court granted him an opportunity to 9 amend his Complaint. Id. at 10–11. 10 CCT then filed a Motion to Dismiss Plaintiff’s Complaint. ECF No. 7. Plaintiff 11 filed his FAC thereafter. See FAC. Consequently, the Court denied CCT’s Motion as moot 12 in light of the newly amended complaint. See ECF No. 9. The City and CCT then each 13 filed the instant Motions to Dismiss Plaintiff’s FAC. See City Mot.; see also CCT Mot. 14 II. Factual Allegations in the FAC 15 Plaintiff’s FAC alleges that on or about June 2019, he engaged “in peaceful 16 organizational activities aimed at protesting decisions made by [CCT], which he believed 17 to be discriminatory and exclusionary.” FAC ¶ 15. He purportedly planned a “peaceful 18 protest near the premises of CCT[,]” id. ¶ 15, then, on or about July 30, 2019, received a 19 phone call “from an individual claiming to be an officer of Defendant Carlsbad [PD],” 20 informing him that “he must cease and desist his protest activities immediately or face legal 21 action,” id. ¶ 16. This caused him to cancel the planned protest, id., yet when he later 22 contacted Carlsbad PD and inquired about the “cease and desist directive” (“Directive”), 23 he was informed “the department had no record of such a directive being issued.” Id. ¶ 17. 24 Despite such representation, Carlsbad PD officials, “when pressed, discussed specifics of 25 the situation which contradicted their earlier statements about the absence of such a 26 directive.” Id. ¶ 18. Plaintiff alleges the foregoing events led to his ostracization within 27 his professional and social communities, “resulting in a loss of employment at both Uber 28 and SeaWorld, where employers cited concerns over legal troubles and Plaintiff’s safety in 1 continuing employment (more or less).” Id. ¶ 19. 2 Plaintiff alleges he was “reminded indirectly through third parties associated with 3 CCT and direct communications from Carlsbad PD to refrain from discussing the incident 4 or attending events, perpetuating the initial misinformation and causing ongoing emotional 5 and social harm to Plaintiff.” Id. ¶ 20. Plaintiff then “discovered inconsistencies in 6 Carlsbad PD’s statements which led him to believe that the directive was not only 7 improperly issued but was also part of a broader effort by CCT and Carlsbad to silence and 8 penalize him without due cause.” Id. ¶ 21. And in May 2025, he “uncovered evidence 9 strongly suggesting that the cease and desist order purportedly issued by [Defendant 10 Carlsbad PD] was a fabrication.” Id. ¶ 22. Plaintiff further alleges his “realization and 11 response to the fraudulent nature of the order” was delayed because of the “years of 12 sustained manipulation and suppression” he endured. Id. 13 Next, Plaintiff alleges Defendants “continued to enforce the non-existent cease and 14 desist directive through informal channels.” Id. ¶ 24. He avers that there is a “strong 15 indication that Defendants did not communicate the issuance of the cease and desist 16 directive to the appropriate city authorities.” Id. ¶ 25. And he suggests the Directive is 17 still in place because he was recently “ejected from a show” at Luminary Arts under 18 “dubious pretenses.” Id. ¶ 26. And finally, Plaintiff indicates a “notice of claim was mailed 19 to the city on 8/28/24.” Id. ¶ 15. 20 Plaintiff brings causes of action for: (1) violation of 42 U.S.C. § 1983 against the 21 City only; (2) intentional infliction of emotional distress (“IIED”) against all Defendants; 22 (3) negligent infliction of emotional distress (“NIED”) against all Defendants; (4) abuse of 23 process against all Defendants; (5) discrimination against CCT; (6) violation of the 24 California Civil Code against all Defendants; (7) breach of contract against CCT; (8) 25 retaliation against all Defendants; (9) gross negligence and malice against all Defendants; 26 and (10) failure to train against the City. See generally id. 27 Plaintiff seeks compensatory damages, declaratory judgments that his constitutional 28 rights were violated, an injunction prohibiting Defendants from further violations of the 1 law, and restitution in the form of “reinstatement of Plaintiff to his positions or roles within 2 the community or at [CCT], if feasible.” Id. at Prayers/Submissions. 3 LEGAL STANDARD 4 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 5 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” The 6 Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in 7 light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement 8 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 9 Although Rule 8 “does not require ‘detailed factual allegations,’ . . . it [does] demand[] 10 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 11 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 12 (2007)). In other words, “a plaintiff’s obligation to provide the ‘grounds’ of his 13 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 14 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 15 (alteration in original) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 16 To survive a motion to dismiss, “a complaint must contain sufficient factual 17 matter . . . to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 18 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the facts pled 19 “allow[] the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. That is not to say that the claim must be probable, but there must 21 be “more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the 22 well-pleaded facts do not permit the court to infer more than the mere possibility of 23 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 24 entitled to relief.’” Id. at 679 (second alteration in original) (quoting 25 Fed. R. Civ. P. 8(a)(2)). 26 When reviewing a motion to dismiss under Rule 12(b)(6), the Court applies its 27 “judicial experience and common sense.” Id. (citation omitted). “[A] district court must 28 accept as true all facts alleged in the complaint” and “draw all reasonable inferences in 1 favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 382 F. Supp. 3d 1012, 1020 2 (S.D. Cal. 2019) (citing Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 3 768 F.3d 938, 945 (9th Cir. 2014)). Where a complaint does not survive 12(b)(6) review, 4 the Court will grant leave to amend unless it determines that no modified contention 5 “consistent with the challenged pleading . . . could cure the deficiency.” DeSoto v. Yellow 6 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. 7 Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). 8 ANALYSIS 9 Plaintiff’s FAC now appears to allege three federal claims against the City, and two 10 against CCT. As to the City, Plaintiff’s FAC alleges a § 1983 claim in his First Cause of 11 Action, a federal retaliation claim in his Eighth Cause of Action, 2 and a failure to train 12 claim in his Tenth Cause of Action. As for CCT, Plaintiff alleges discrimination under 13 Title VII of the Civil Rights Act of 1964 (“Title VII”) in his Fifth Cause of Action, as well 14 as federal retaliation in his Eighth Cause of Action. 15 Plaintiff’s remaining claims assert violations of state law. As to the City, Plaintiff 16 asserts six claims under California state law: (1) intentional infliction of emotional distress 17 in the Second Cause of Action; (2) negligent infliction of emotional distress in the Third 18 Cause of Action; (3) abuse of process in the Fourth Cause of Action; (4) violation of the 19 California Civil Code in the Sixth Cause of Action; (5) retaliation under state law in the 20 Eighth Cause of Action; (6) and gross negligence and malice in the Ninth Cause of Action. 21 With respect to CCT, Plaintiff alleges the same violations of California law, with the 22 addition of a state law claim for discrimination in his Fifth Cause of Action, and state law 23 claim for breach of contract in his Seventh Cause of Action. The Court first addresses 24 whether Plaintiff has stated a federal claim against either the City or CCT. 25

26 2 The FAC does not point to any legal authority for Plaintiff’s “retaliation” claim in his Eighth Cause of 27 Action, but as he alleges Defendants’ actions “constitute retaliation under both federal and state 28 employment and civil rights laws,” FAC ¶ 89, the Court liberally construes this cause of action as an 1 I. The FAC’s Federal Claims 2 A. First and Tenth Causes of Action—Section 1983 and Failure to Train 3 Plaintiff first alleges § 1983 claims on the bases that Carlsbad PD violated his First 4 Amendment right to free speech by issuing the Directive, and his Fourth Amendment right 5 to due process, by failing to provide him an opportunity to contest the Directive. FAC 6 ¶¶ 35, 38, 39. 7 To prevail on a claim for violation of constitutional rights under § 1983, a plaintiff 8 must ultimately prove two elements: (1) that a person acting under color of state law 9 committed the conduct at issue; and (2) that the conduct deprived the claimant of some 10 right, privilege, or immunity conferred by the Constitution or the laws of the United States. 11 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 643 (2004). 12 As before, the City argues Plaintiff fails to state a § 1983 claim under Monell v. 13 N.Y.C. Dep’t of Soc. Servs., 436 US 658, 690 (1978). See City Mem. at 8–9. Plaintiff did 14 not respond to this argument in his Opposition, and the Court, again, agrees with the City. 15 A municipal entity may not be liable under Section 1983 unless it “implements or 16 executes a policy statement, ordinance, regulation, or decision officially adopted and 17 promulgated by that body’s officers,” or has a “governmental ‘custom’ even though such 18 a custom has not received formal approval through the body’s official decision-making 19 channels” that causes a constitutional harm. Monell, 436 U.S. at 690–91. To state a Monell 20 claim, a plaintiff must allege: (1) the plaintiff was deprived of a federal constitutional right; 21 (2) the local government entity had a policy; (3) the policy amounted to a deliberate 22 indifference to the plaintiff's constitutional right; and (4) the policy was the moving force 23 behind the constitutional violation. See Dougherty v. City of Covina, 654 F.3d 892, 900 24 (9th Cir. 2011). 25 To “withstand a motion to dismiss for failure to state a claim, a Monell claim must 26 consist of more than mere ‘formulaic recitations of the existence of unlawful policies, 27 conducts[,] or habits.’” Bedford v. City of Hayward, No. 3:12-cv-00294-JCS, 28 2012 WL 4901434, at *12 (N.D. Cal. Oct. 15, 2012) (citation omitted). “Monell 1 allegations must be [pled] with specificity[.]” Galindo v. City of San Mateo, No. 16-cv- 2 03651-EMC, 2016 WL 7116927, at *5 (N.D. Cal. Dec. 7, 2016). 3 Here, Plaintiff’s FAC does not point to any specific policy or custom by the City 4 that amounted to deliberate indifference of his constitutional rights and caused the 5 constitutional harm underlying his alleged § 1983 claims in his First Cause of Action. The 6 Court notes that Plaintiff does, however, plead a Tenth Cause of Action against the City 7 for “failure to train.” A policy of failing to train municipal employees adequately that 8 caused a constitutional violation could support Monell liability, if it amounts to a policy of 9 deliberate indifference, as in, “if the need to train was obvious and the failure to do so made 10 a violation of constitutional rights likely.” Dougherty, 654 F.3d at 900; see also City of 11 Canton, Ohio v. Harris, 489 U.S. 378, 388–89 (1989). Deliberate indifference may be 12 shown through evidence of a “failure to investigate and discipline employees in the face of 13 widespread constitutional violations.” Rodriguez v. County of Los Angeles, 891 F.3d 776, 14 803 (9th Cir. 2018) (citation omitted). 15 To the extent the Court could construe Plaintiff’s Tenth Cause of Action as an 16 attempt to plead municipal liability under § 1983 pursuant to a failure to train theory, 17 Plaintiff’s failure to train allegations are conclusory and not sufficiently specific to support 18 a Monell claim. For instance, Plaintiff alleges Carlsbad PD “inadequately train[ed] and 19 supervis[ed] its officers,” and the “failure to train and supervise constitutes deliberate 20 indifference to the rights of those with whom the police officers interact.” FAC ¶¶ 100, 21 101. Such allegations are “formulaic recitations of the existence of unlawful policies, 22 conducts[,] or habits,” Bedford, 2012 WL 4901434, at *12 (citation omitted), and “of the 23 elements of a cause of action,” Twombly, 550 U.S. at 555, which are insufficient to state a 24 Monell claim. 25 Accordingly, the Court agrees with the City that Plaintiff has failed to state a § 1983 26 claim under Monell, including under a failure to train theory. Accordingly, the Court 27 GRANTS the City’s Motion to Dismiss Plaintiff’s First and Tenth Causes of Action. 28 / / / 1 B. Fifth Cause of Action—Title VII 2 Next, to the extent Plaintiff seeks to plead a Title VII claim within his Fifth Cause 3 of Action against CCT, the Court agrees Plaintiff has failed to state such a claim. Title VII 4 broadly prohibits an employer from discriminating on the basis of “race, color, religion, 5 sex, or national origin” and from “‘discriminat[ing] against’ an employee or job applicant 6 because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a 7 charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” 8 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006) (quoting 42 U.S.C. 9 § 2000e-3(a)). 10 CCT argues Plaintiff fails to allege any non-conclusory allegations connecting CCT 11 to his alleged harm; rather the FAC indicates his damages were caused by Carlsbad PD’s 12 alleged Directive. CCT Mot. at 5–6. And, CCT argues, there are no factual allegations 13 that CCT took part in causing Carlsbad PD to send the Directive to Plaintiff. Id. at 6. 14 The Court agrees. While Plaintiff alleges he was discriminated against by CCT 15 through exclusion from participating in theater activities and performances because of his 16 “protected activity of organizing and attempting to engage in a peaceful protest against 17 perceived discriminatory practices by CCT,” he does not explain why he believes this to 18 be the case, nor provide facts underpinning this theory. Id. ¶ 70. But “[p]lausibility 19 requires pleading facts, as opposed to conclusory allegations or the ‘formulaic recitation of 20 the elements of a cause of action.’” See Somers v. Apple, Inc., 729 F.3d 953, 959–60 (9th 21 Cir. 2013) (citation omitted); see also Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must 22 accept as true all of the allegations contained in a complaint is inapplicable to legal 23 conclusions. Threadbare recitals of the elements of a cause of action, supported by mere 24 conclusory statements, do not suffice.”). 25 Moreover, Plaintiff does not allege facts, as opposed to conclusions, showing he 26 engaged in a protected activity, as in, that CCT’s alleged “discriminatory practices” were 27 made unlawful by Title VII, or that Plaintiff had a reasonable belief CCT was engaged in 28 an unlawful employment practice. See Moyo v. Gomez, 32 F.3d 1382, 1384–85 (9th Cir.), 1 amended by, 40 F.3d 982 (9th Cir. 1994). Finally, the Court also notes it does not appear 2 Plaintiff is alleging CCT is—or was—his employer for the purposes of Title VII. 3 Thus, the Court finds Plaintiff has failed to state a Title VII claim against CCT within 4 his Fifth Cause of Action and GRANTS CCT’s Motion to Dismiss as to this claim. 5 C. Eighth Cause of Action—Federal Retaliation 6 Additionally, Plaintiff’s attempt to bring claims against both Defendants for 7 “retaliation” under unidentified federal law(s) in his Eighth Cause of Action, as currently 8 pled, is insufficient to provide Defendants with fair notice of the nature of the claims and 9 the facts underlying them as required by Rule 8(a). See Henderson v. Marrow, No. CV 10- 10 04833 MMM (AGRx), 2011 WL 13217241, at *2 (C.D. Cal. Feb. 10, 2011); see also 11 Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 1996) (explaining even pro se 12 pleadings “must [still] meet some minimum threshold in providing a defendant with notice 13 of what it is that it allegedly did wrong”). Plaintiff both fails to provide the legal bases 14 underpinning such claims and fails to delineate what allegations apply to which Defendant 15 for which claim. In any event, to the extent Plaintiff seeks to bring a Title VII claim for 16 retaliation against the City, the Court is persuaded that he has failed to state a such a claim 17 as he has not alleged an employment or contractual relationship between Plaintiff and the 18 City. See Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir. 1999) (“[T]here must 19 be some connection with an employment relationship for Title VII protections to apply.” 20 (quoting Lutcher v. Musicians Union Loc. 47, 633 F.2d 880, 883 (9th Cir. 1980)). 21 And assuming CCT could be considered in such a relationship with Plaintiff—an 22 issue the Court does not decide here, but noted above—to state a claim for retaliation, 23 Plaintiff has not alleged facts, as opposed to vague and conclusory assertions, that (1) he 24 engaged in a protected activity under Title VII; (2) CCT subjected Plaintiff to an adverse 25 employment action; and (3) a causal link exists between the protected activity and the 26 employer’s action. Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 27 (9th Cir. 2013); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). 28 Accordingly, the Court finds Plaintiff’s federal retaliation claims within his Eighth 1 Cause of Action must also be dismissed and GRANTS the City and CCT’s Motions as to 2 these claims. 3 D. Conclusion 4 The Court finds Plaintiff’s FAC has failed to plead sufficient allegations to state a 5 federal claim against either the City or CCT. In light of this finding, the Court declines to 6 reach the City and CCT’s arguments that Plaintiff’s claims are barred by the applicable 7 statutes of limitations. The City and CCT’s Motions to Dismiss are thus GRANTED and 8 the Court DISMISSES Plaintiff’s First, Fifth, Eighth, and Tenth Causes of Action’s federal 9 claims. 10 II. The FAC’s State Law Claims 11 The Court next addresses Plaintiff’s remaining state law claims. “Federal courts are 12 courts of limited jurisdiction, possessing only that power authorized by Constitution and 13 statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (citation and internal quotation marks 14 omitted). As such, federal courts have jurisdiction over civil actions in which (1) a federal 15 question exists, or (2) complete diversity of citizenship between the parties exists and the 16 amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332. 17 As this case was removed based on federal question jurisdiction, see Notice of 18 Removal, the now-dismissed federal law claims provide the sole bases for federal subject 19 matter jurisdiction in this case. While a federal court may exercise supplemental 20 jurisdiction over state law claims “that are so related to claims in the action within [the 21 court’s] original jurisdiction that they form part of the same case or controversy under 22 Article III of the United States Constitution,” 28 U.S.C. § 1367(a), a court may decline to 23 exercise supplemental jurisdiction where it “has dismissed all claims over which it has 24 original jurisdiction,” id. § 1367(c)(3); see also Albingia Versicherungs A.G. v. Schenker 25 Int’l, Inc., 344 F.3d 931, 937–38 (9th Cir. 2003) (Section 1367(c) grants federal courts the 26 discretion to dismiss state law claims when all federal claims have been dismissed). A 27 court, in considering whether to retain supplemental jurisdiction, should consider factors 28 such as “economy, convenience, fairness, and comity.” Acri v. Varian Assocs., 114 F.3d 1 999, 1001 (9th Cir. 1997) (en banc) (internal quotation marks omitted). However, “in the 2 usual case in which all federal-law claims are eliminated before trial, the balance of 3 factors . . . will point toward declining to exercise jurisdiction over the remaining state law 4 claims.” Exec. Software N. Am., Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1553 n.4 (9th Cir. 5 1994) (emphasis omitted), overruled on other grounds by, Cal. Dep’t of Water Res. v. 6 Powerex Corp., 533 F.3d 1087 (9th Cir. 2008). 7 Here, the balance of factors weighs in favor of dismissing Plaintiff’s remaining state 8 law claims. This case has yet to proceed beyond the pleadings, and thus few judicial 9 resources are wasted by dismissing the case at this stage. Further, dismissal promotes 10 comity by allowing the California courts to interpret state law concerning the state law 11 claims in the first instance. Thus, the Court declines to exercise supplemental jurisdiction 12 over the remaining state law claims—IIED, NIED, abuse of process, discrimination under 13 California law, unspecified California Civil Code violation, breach of contract, gross 14 negligence and malice claims—in Plaintiff’s FAC. See Ove v. Gwinn, 264 F.3d 817, 826 15 (9th Cir. 2001) (court may decline to exercise supplemental jurisdiction over related state 16 law claims under subsection (c)(3) once it has dismissed all claims over which it has 17 original jurisdiction). 18 Accordingly, because the Court declines to exercise supplemental jurisdiction as to 19 Plaintiff’s state law claims, Plaintiff’s state law claims against the City and CCT are 20 DISMISSED without prejudice. Consequently, the Court DENIES the City and CCT’s 21 respective Motions to Dismiss as to Plaintiff’s state law claims as MOOT.3 22 / / / 23 / / / 24

25 3 The City also requests the Court take judicial notice of Plaintiff’s August 27, 2024 Government Claim 26 and August 28, 2024 Amended Government Claim, to support its argument Plaintiff’s state law claims are barred because Plaintiff failed to comply with the California Government Claims Act. See Request 27 for Judicial Notice (“RJN”), ECF No. 10-2. Plaintiff does not appear to oppose the Request, however, as 28 the Court does not rely on these documents in reaching its conclusion, the Court DENIES AS MOOT the 1 III. Leave to Amend 2 The City again invites the Court to dismiss Plaintiff’s FAC in its entirety without 3 leave to amend, arguing that “Plaintiff has not cured any of the defects which caused his 4 prior pleading to be dismissed.” City Mem. at 2. The Court finds, however, that Plaintiff’s 5 FAC has added more allegations that, at minimum, attempt to address the defects 6 previously identified by the Court. Thus, considering Plaintiff’s pro se status and the 7 Court’s obligation to construe such pleadings liberally, the Court does not find that it is 8 “absolutely clear that no amendment can cure” the defects presented here. Lucas v. Dep’t 9 of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (emphasis added). As for the state law claims, 10 the Court also finds leave to amend appropriate because Plaintiff “may be able to plead a 11 federal cause of action that warrants the Court’s exercise of supplemental jurisdiction.” 12 Win v. Salas, No. 18-CV-00840-LHK, 2018 WL 3093464, at *6 (N.D. Cal. June 22, 2018). 13 The Court accordingly agrees with Plaintiff that he is entitled to another opportunity 14 to amend to “clarify and enhance the factual allegations and legal claims, ensuring that the 15 case is decided on the merits rather than procedural technicalities.” Opp’n ¶ 35. So, the 16 Court will grant Plaintiff leave to amend his FAC. 17 CONCLUSION 18 For the reasons above, the Court GRANTS the City (ECF No. 10) and CCT’s (ECF 19 No. 11) Motions as to Plaintiff’s federal claims and DENIES AS MOOT the City and 20 CCT’s Motions as to Plaintiff’s state law claims. The Court thus DISMISSES Plaintiff’s 21 First Amended Complaint WITH LEAVE TO AMEND. Plaintiff has thirty (30) days’ 22 leave from the date of this Order to file an amended complaint curing the pleading 23 deficiencies noted above. Any amended complaint must be complete in and of itself 24 without reference to the original or First Amended Complaint. See S.D. Cal. CivLR 15.1. 25 Claims not realleged in the amended complaint will be considered waived. Lacey v. 26 Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 27 leave to amend that are not realleged in an amended pleading may be “considered waived”). 28 If Plaintiff fails to amend within the time provided, the Court will enter a final Order 1 dismissing this action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a 2 || plaintiff does not take advantage of the opportunity to fix his complaint, a district court 3 ||may convert the dismissal of the complaint into dismissal of the entire action.”’). 4 IT IS SO ORDERED. 5 Dated: June 25, 2025 tt 6 pen Janis L. Sammartino United States District Judge

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