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2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 OUR PECULIAR FAMILY, a sole 11 Case No.: 2:20-cv-00331-ODW (JCx) proprietorship, ELISABETH MACY, an 12 individual, d.b.a. Our Peculiar Family; 13 HANNAH MACY, an individual, d.b.a. ORDER GRANTING IN PART AND Our Peculiar Family; MELISSA MACY, DENYING IN PART DEFENDANTS’ 14 an individual, d.b.a. Our Peculiar Family; MOTION TO DISMISS [30] 15 and CHRISTIANA MACY, an individual, d.b.a. Our Peculiar Family, 16 Plaintiffs, 17 v. 18 19 INSPIRE CHARTER SCHOOLS, a nonprofit corporation; CALEB JONES, 20 individually and in his official capacity as 21 Vendor Support Team Lead for INSPIRE CHARTER SCHOOLS; and DOES 1 22 through 25, 23 Defendants. 24 25 I. INTRODUCTION 26 Defendants Inspire Charter Schools (“Inspire”) and Caleb Jones (“Jones”) 27 (collectively, “Defendants”) filed their Motion to Dismiss under Federal Rule of Civil 28 Procedure 12(b)(6) (“Motion”) on March 13, 2020. (Mot. to Dismiss, ECF No. 30.) 1 Plaintiffs Our Peculiar Family (“OPF”), Elisabeth Macy, Melissa Macy, Hannah 2 Macy, and Christiana Macy (collectively, “Plaintiffs”) opposed (“Opposition”) on 3 March 21, 2020. (Opp’n to Mot. (“Opp’n”), ECF No. 33.) Defendants replied on 4 March 30, 2020. (Reply in Supp. of Mot. (“Reply”), ECF No. 34.) 5 For the following reasons, the Court GRANTS IN PART and DENIES IN 6 PART Defendants’ Motion.1 7 II. PLAINTIFFS’ ALLEGATIONS 8 Plaintiffs are a religious, family-run business offering art instruction “to 9 individuals ranging in age from nine to adult.” (First Am. Compl. (“FAC”) ¶ 24, ECF 10 No. 27.) Plaintiffs promote their art lessons on their website. (FAC ¶ 25.) “Although 11 Plaintiffs express their religious identity in their website, the services they provide are 12 nonsectarian.” (FAC ¶ 28.) The following is one example of religious content on 13 Plaintiffs’ website: 14 We have come to realize that our eyes see beauty that others sometimes miss. In that beauty we see purpose and meaning. From a decrepit old 15 building or the many colors found on a rusty old car, to the barren 16 stillness of our desert valley to a wondering child’s face, we believe the 17 world around us reflects the beauty and glory of its Creator. 18 (FAC ¶ 28.) 19 Inspire operates charter schools throughout California, receives public funding, 20 and “partner[s] with vendors in providing students with various products and 21 services.” (FAC ¶¶ 30–31, 39.) Jones is employed by Inspire as the “Vendor Support 22 Team Lead.” (FAC ¶ 21.) “Vendors who are approved enter into a private 23 contractual relationship with Inspire, but do not provide outsourced governmental 24 functions as independent contractors.” (FAC ¶ 33.) To be approved as a vendor, 25 applicants must complete Inspire’s application survey. (FAC ¶ 34.) 26 27

28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 In August 2019, Plaintiffs completed one such survey, attempting to contract 2 with Inspire to provide art instruction. (FAC ¶¶ 37–38.) Plaintiffs then received an 3 email from Jones rejecting the application, stating “the services appear to be religious 4 in nature or have religious inclinations.” (FAC ¶ 39.) After Plaintiffs asked for 5 clarification, Jones responded that the “decision was based upon the content included 6 on your website.” (FAC ¶¶ 40–41.) He continued: “All services and content on 7 websites must be secular in nature for a vendor to be eligible for enrichment funds.” 8 (FAC ¶ 41.) After Plaintiffs requested clarification concerning what content was 9 preventing approval of their application, Jones advised that Plaintiffs must remove 10 Bible verses and references to “the Creator” on their website to have their application 11 approved. (FAC ¶ 43.) Jones later advised that “[i]f all services are secular and [i]f 12 you were willing to remove this content from your website, we could continue the 13 approval process.” (FAC ¶ 45.) Plaintiffs claim that Defendants’ rejection of their 14 application caused them economic damages, violated their constitutional rights, and 15 violated California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51, 16 51.5, 52, and 52.1. (FAC ¶¶ 47–125.) 17 III. LEGAL STANDARD 18 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil 19 Procedure tests the sufficiency of a claim for relief. A complaint may be dismissed 20 for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) 21 insufficient facts alleges under a cognizable legal theory. Balistreri v. Pacifica Police 22 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). In determining whether a complaint states a 23 claim on which relief may be granted, its allegations of material fact must be taken as 24 true and construed in the light most favorable to the plaintiff. See Lazy Y Ranch Ltd. 25 v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). “[T]he tenet that a court must accept as 26 true all of the allegations contained in a complaint is inapplicable to legal 27 conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 28 1 To survive a Rule 12(b)(6) dismissal, a complaint must allege enough specific 2 facts to provide both “fair notice” of the particular claim being asserted and “the 3 grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 4 (2007). While detailed factual allegations are not required, a complaint with 5 “unadorned, the-defendant-unlawfully-harmed-me accusation[s]” and “‘naked 6 assertion[s]’ devoid of ‘further factual enhancement’” would not suffice. Iqbal, 556 7 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Instead, “a complaint must 8 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 9 plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual 10 content that allows the court to draw the reasonable inference that the defendant is 11 liable for the misconduct alleged.” Id. (citation omitted). 12 IV. DISCUSSION 13 A. Qualified Immunity 14 Defendants move to dismiss claims one through six as to Jones in his individual 15 capacity based on qualified immunity. (Mot. 3–5.) 16 Qualified immunity immunizes government officials from civil rights actions 17 seeking damages if the official can show that, even in the light most favorable to the 18 plaintiff, the official did not violate the plaintiff’s constitutional rights. Saucier v. 19 Katz, 533 U.S. 194, 201 (2001). To resolve whether a defendant is entitled to 20 qualified immunity, courts must determine whether the plaintiff has sufficiently 21 alleged that (1) the official violated a constitutional or statutory right, and (2) the right 22 was “clearly established” such that a reasonable official would understand his actions 23 to be unconstitutional. Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). 24 Dismissal under Rule 12(b)(6) is only appropriate where a court “can determine, 25 based on the complaint itself, that qualified immunity applies.” Groten v. California, 26 251 F.3d 844, 851 (9th Cir. 2001). 27 28 1 1. Plaintiffs Adequately Allege That Jones Violated A Constitutional Right. 2 The first step in a qualified immunity analysis is, “taken in the light most 3 favorable to the party asserting the injury, do the facts alleged show the officer’s 4 conduct violated a constitutional right?” Saucier, 533 U.S. at 201. Here, Plaintiffs’ 5 version of the facts, taken in a light most favorable to Plaintiffs and reading the FAC 6 liberally, sets out a violation of Plaintiffs’ First Amendment rights. 7 Plaintiffs applied to provide nonsectarian art instruction to Inspire and Jones 8 rejected that application due to religious content on Plaintiffs’ website. (FAC 9 ¶¶ 38–43.) Jones then conditioned Plaintiffs’ eligibility to contract with Inspire on 10 removing this content from the website, regardless of any potential impact the content 11 may have on Plaintiffs’ art instruction. (FAC ¶ 45.) 12 Defendants maintain that denial of Plaintiffs’ application was permissible due 13 to California Education Code section 47605(d)(1), which provides in part: “In addition 14 to any other requirement imposed under this part, a charter school shall be 15 nonsectarian in its programs, admission policies, employment practices, and all other 16 operations.” (Mot. 5.) In other words, Defendants argue that their obligation to be 17 “nonsectarian” in administering a school program required them to exclude any 18 vendor that publicly espoused religious views. (Mot. 5.) Defendants are incorrect. 19 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). 20 In Trinity Lutheran, Missouri instituted a nonprofit grant program to replace 21 playground surfaces. Id. at 2017. Missouri’s Department of Natural Resources had a 22 “strict and express policy of denying grants to any applicant owned or controlled by a 23 church, sect, or other religious entity.” Id. Missouri thus denied Trinity Lutheran’s 24 application solely because it was a church. Id. at 2018. The Supreme Court 25 concluded that Missouri had violated the Free Exercise Clause of the Constitution 26 because it had expressly discriminated against Trinity Lutheran based on its status as a 27 religious organization. Id. at 2021. The Supreme Court concluded, “the exclusion of 28 1 Trinity Lutheran from a public benefit for which it is otherwise qualified, solely 2 because it is a church, is odious to our Constitution . . . and cannot stand.” Id. at 2025. 3 Defendants’ policies here are even more preclusive than the unconstitutional 4 policies in Trinity Lutheran. Not only do Defendants’ policies exclude all churches 5 from providing services, they apparently preclude all services by any potential vendor 6 with religious statements on their website. Defendants do not explain how institution 7 of such a categorical requirement is in keeping with their obligation to facilitate 8 “nonsectarian” services, nor do they offer facts to support that Plaintiffs’ application 9 implicated Establishment Clause concerns. 10 Instead, without addressing controlling Supreme Court precedent or offering 11 authority of their own, Defendants maintain that by allowing Plaintiffs “to become an 12 approved vendor without modifying its website to remove sectarian references, Inspire 13 could potentially be favoring plaintiffs’ religious views in violation of the No 14 Preference and Establishment Clauses.” (Reply 3.) The Supreme Court in Trinity 15 Lutheran rejected similarly vague citation of religious establishment concerns, stating 16 that “[i]n the face of the clear infringement on free exercise before us, that interest 17 cannot qualify as compelling.” 137 S. Ct. at 2015. And like in Trinity Lutheran, the 18 policy here “expressly discriminates against otherwise eligible recipients by 19 disqualifying them from a public benefit solely because of their religious character” 20 and therefore “imposes a penalty on the free exercise of religion that triggers the most 21 exacting scrutiny.” Id. at 2021. 22 Because Defendants offer no argument or authority to withstand such scrutiny, 23 the Court finds that Plaintiffs have sufficiently alleged that Jones violated a 24 constitutional right. 25 2. Plaintiffs’ FAC Sufficiently Implicates A Clearly Established Right. 26 The Court now turns to the second step of the qualified immunity analysis, i.e. 27 whether the contours of the First Amendment right at issue were sufficiently clear that 28 “every reasonable official” would have understood that what he was doing violated 1 the First Amendment. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal 2 quotation marks). “The right the official is alleged to have violated must have been 3 ‘clearly established’ in an appropriately particularized sense.” Calabretta v. Floyd, 4 189 F.3d 808, 812 (9th Cir. 1999). “[A] case directly on point” is not required to 5 show the right in question was clearly established, “but existing precedent must have 6 placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. 7 at 741. 8 The Supreme Court “has repeatedly confirmed that denying a generally 9 available benefit solely on account of religious identity imposes a penalty on the free 10 exercise of religion.” Trinity Lutheran, 137 S. Ct. at 2019. Plaintiffs, like the 11 plaintiffs in Trinity Lutheran, are beholden to a policy that “expressly discriminates 12 against otherwise eligible recipients by disqualifying them from a public benefit solely 13 because of their religious character.” Id. at 2021. Longstanding Supreme Court 14 precedent “make[s] clear” that “such a policy imposes a penalty on the free exercise of 15 religion.” Id. 16 Defendants argue in conclusory fashion that “[t]here is simply no indication that 17 Jones believed that his conduct at the time was unlawful or an infringement of 18 plaintiffs’ constitutional rights.” (Mot. 5.) Aside from the deficient arguments 19 rejected above, however, Defendants offer no argument with respect to this step of the 20 qualified immunity analysis. (See generally Mot.; Reply.) Defendants therefore do 21 not and cannot dispute that Plaintiffs’ right to provide nonsectarian art instruction free 22 from express religious discrimination was clearly established since at least Trinity 23 Lutheran. Hence, no reasonable official could have believed it was lawful to 24 condition Plaintiffs’ eligibility to provide such services on removing the religious 25 content from Plaintiffs’ website. Saucier, 533 U.S. at 201; al-Kidd, 563 U.S. at 741. 26 Accordingly, Defendants’ Motion is DENIED to the extent it is based on 27 qualified immunity. 28 1 B. Unruh Act2 2 Defendants move to dismiss Plaintiffs’ seventh claim for violation of the Unruh 3 Act for alleged lack of standing and failure to allege the requisite discrimination. 4 (Mot. 5–8.) Defendants argue that Plaintiffs lack standing under the Unruh Act 5 because they are not “client[s], patron[s] or customer[s] receiving goods, services, or 6 facilities.” (Mot. 7–8 (internal quotation marks omitted).) According to Defendants, 7 Plaintiffs cannot state an Unruh Act Claim because they are sellers of services outside 8 the scope of the Unruh Act. (Id.) The Court agrees and therefore does not reach 9 Defendants’ remaining arguments. 10 The Unruh Act provides that “[a]ll persons within the jurisdiction of this state 11 are free and equal, and no matter what their . . . religion . . . are entitled to the full and 12 equal accommodations, advantages, facilities, privileges, or services in all business 13 establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). “Standing under 14 the Unruh Civil Rights Act is broad.” Osborne v. Yasmeh, 1 Cal. App. 5th 1118, 1127 15 (2016). “When ‘any person or group of persons is engaged in conduct of resistance to 16 the full enjoyment of any of the rights described in this section . . . any person 17 aggrieved by the conduct may bring a civil action . . . .’” Id. (citing Cal. Civ. Code 18 § 52(c).) “[A]n individual plaintiff has standing under the [Unruh] Act if he or she 19 has been the victim of the defendant’s discriminatory act.” Id. (quoting Angelucci v. 20 Century Supper Club, 41 Cal. 4th 160, 175 (2007). 21 However, “there is no indication that the Legislature intended to broaden the 22 scope of [the Unruh Act] to include discriminations other than those made by a 23 ‘business establishment’ in the course of furnishing goods, services or facilities to its 24 clients, patrons or customers.” Alcorn v. Anbro Eng’g, Inc., 2 Cal. 3d 493, 500 25 (1970). Courts have thus refused to extend the Unruh Act to claims arising out of 26 employment or contracts for services. See, e.g., Johnson v. Riverside Healthcare Sys., 27 2 Plaintiffs agree to withdraw all portions of the seventh claim based on California Civil Code 28 Section 52.1. (Opp’n 14.) The Court therefore does not address Defendants’ grounds to dismiss those portions. 1 LP, 534 F.3d 1116, 1126 (9th Cir. 2008) (“California law continues to require a 2 plaintiff asserting a claim under § 51 to demonstrate that his relationship with the 3 offending organization was similar to that of the customer in the customer-proprietor 4 relationship.”) (internal quotation marks omitted); Gauvin v. Trombatore, 682 F. 5 Supp. 1067, 1073 (N.D. Cal. 1988). 6 In Gauvin, the court held that a freeway subcontractor could not sue under the 7 Unruh Act for alleged discrimination in the award of subcontract work. The court 8 found that the relationship between the subcontractor and the California Department 9 of Transportation fell outside the Unruh Act, which “only applies to business 10 establishments in the context of the supply of services or facilities to clients, patrons, 11 or customers.” 682 F. Supp. at 1073. 12 Here, Plaintiffs do not allege that Defendants denied them “goods, services, or 13 facilities” or that they are a prospective “client, patron or customer” of Inspire. 14 Rather, like the subcontractor in Gauvin, Plaintiffs were denied the ability to enter into 15 a services contract due to alleged discrimination. Expanding the Unruh Act to include 16 this kind of discrimination would improperly extend its scope beyond what the 17 California Supreme Court has determined the legislature intended. Johnson, 534 F.3d 18 at 1124 (citing Alcorn, 2 Cal. 3d at 500) (“The court has explained . . . that the Unruh 19 Act . . . does not extend to claims for employment discrimination because other 20 California statutes are specifically tailored to provide relief for such conduct, most 21 notably the FEHA, which was passed by the California Legislature in the very same 22 session as the Unruh Act.”). 23 As the FAC’s allegations show that Plaintiffs’ relationship with Defendants is 24 not the type of relationship protected under the Unruh Act, Defendants’ Motion to 25 Dismiss Plaintiffs’ Unruh Act claim is GRANTED. Additional allegations consistent 26 with the FAC could not possibly cure this deficiency; therefore, dismissal is without 27 leave to amend. See Carrico v. City & Cty. of San Francisco, 656 F.3d 1002, 1008 28 1 || (9th Cir. 2011) (“[Leave to amend] is properly denied.. if amendment would be futile.”’). 3 Vv. CONCLUSION 4 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN 5 | PART Defendants’ Motion (ECF No. 30). Plaintiffs’ claim for violation of the Unruh 6 || Act is hereby DISMISSED without leave to amend. The Motion is DENIED in all 7 || other respects. 8 9 IT ISSO ORDERED. 10 ul June 23, 2020 SB □ KY 12 Mitel he 13 OTIS D. GHT, II 14 UNITED STATES DISTRICT JUDGE

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