1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHAUN FREDERICKSON, an individual; Case No.: 21cv1958-LL-JLB HEATHER CAUVEL, an individual; 12 WILLIAM HYDE, an individual, ORDER GRANTING DEFENDANT’S 13 MOTION TO DISMISS PLAINTIFFS’ Plaintiffs,

SECOND CAUSE OF ACTION (FREE

14 v. SPEECH UNDER THE FIRST 15 AMENDMENT) WITH PREJUDICE

SAN DIEGO COUNTY BOARD OF

16 SUPERVISORS, [ECF No. 5]; 17 Defendant.

ORDER GRANTING IN PART

18

PLAINTIFFS’ MOTION TO

19 REMAND REMAINING STATE

CLAIMS

20

21 [ECF No. 8]

22 23 Presently before the Court is Defendant County of San Diego’s (erroneously sued as 24 “San Diego Board of Supervisors”) Motion to Dismiss Plaintiffs’ First Amended 25 Complaint (“FAC”). ECF No. 5. Plaintiffs Shaun Frederickson, Heather Cauvel, and 26 William Hyde filed an Opposition [ECF No. 7], and Defendant filed a Reply [ECF No. 9]. 27 28 1 Also before the Court is Plaintiffs’ Motion to Remand [ECF No. 8], Defendant’s 2 Opposition [ECF No. 10], and Plaintiffs’ Reply [ECF No. 12]. The Motions are fully 3 briefed, and the Court deems them suitable for submission without oral argument. 4 For the reasons set forth below, the Court GRANTS Defendant’s Motion to Dismiss 5 Plaintiffs’ Second Cause of Action for Violation of Free Speech Rights under the First 6 Amendment of the United States Constitution with prejudice. It is further ORDERED that 7 the Court declines supplemental jurisdiction over the remaining state law claims, and 8 Plaintiffs’ Motion to Remand is GRANTED IN PART. 9 I. Background 10 On November 16, 2021, Defendant County of San Diego filed a Notice of Removal 11 removing the instant case to federal court pursuant to 28 U.S.C. § 1441 and § 1446. ECF 12 No. 1. The operative complaint is Plaintiffs’ FAC filed on November 19, 2021. ECF No. 13 3-1. In the FAC, Plaintiffs bring the following causes of action against the Defendant: (1) 14 Liberty of Speech, Article 1, Section 2, of the California Constitution; (2) Violation of Free 15 Speech Rights under the First Amendment of the United States Constitution (3) Equal 16 Protection Clause, Article 1, Section 7, of the California Constitution; (4) Liberty Clause: 17 Article 1, Section 1, of the California Constitution; and (5) Right to Liberty and Substantive 18 Due Process: Article 1, Sections 1 and 7, of the California Constitution. ECF No. 3-1. 19 Plaintiffs’ causes of action arise out of Resolution No. 21-142 (the “Resolution”) that was 20 passed by the County Board of Supervisors on August 31, 2021. FAC at ¶ 5. The Resolution 21 is entitled “A Resolution of the Board of Supervisors of the County of San Diego Declaring 22 Health Misinformation a Public Health Crisis.” See Resolution at ECF No. 5-4 at 2-3. 1 23

24 25 1 Under Federal Rule of Evidence 201, a court may take judicial notice of matters of public record. Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (noting that a court 26 may take judicial notice of “undisputed matters of public record”). The Court takes judicial 27 notice of Exhibits 1 through 5, attached to Defendant County of San Diego’s Request for Judicial Notice In Support of San Diego County’s Motion to Dismiss the First Amended 28 1 The gravamen of the allegations in Plaintiffs’ FAC is that the Resolution violates 2 Plaintiffs’ civil rights including their right to free speech under the First Amendment and 3 the “vagueness and overbreadth doctrines.” FAC at ¶¶ 7-8. Defendant argues in the Motion 4 to Dismiss that “the Resolution constitutes government speech that does not violate 5 Plaintiffs’ constitutional rights.” MTD at 6. Specifically, Defendant County of San Diego 6 argues that: (1)“[t]he Resolution is the Board of Supervisor’s Expression of Opinion;” 7 (2)“[t]he FAC fails to allege facts showing the resolution violates Plaintiffs’ constitutional 8 rights;” and (3)“[t]he Resolution constitutes government speech not subject to the First 9 Amendment.” Id. at 6-14. Plaintiffs oppose on the grounds that “the [R]esolution is a 10 blatant attempt by the Defendant to infringe on the Plaintiffs’ right to free speech under 11 both the First Amendment of the United States Constitution and the California 12 Constitution’s Liberty of Speech.” Oppo. at 2. Plaintiffs argue that “the Resolution itself is 13 vague and overbroad in its application and is subject to a facial challenge on its 14 constitutionality.” Id. Plaintiffs further argue that “the plain meaning of the words used 15 show the Resolution seeks to take an active role in regulating speech within San Diego 16 County.” Id. 17 II. Legal Standard 18 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the 19 claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 20 731 (9th Cir. 2001). To avoid dismissal, a complaint must plead with enough facts to state 21 a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 22 (2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows 23 the court to draw the reasonable inference that the defendant is liable for the misconduct 24 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 25 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires 26 more than labels and conclusions, and a formulaic recitation of the elements of a cause of 27 action will not do.” Twombly, 550 U.S. at 555 (citation omitted). “[W]here the well-pleaded 28 facts do not permit the court to infer more than the mere possibility of misconduct, the 1 complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” 2 Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). 3 III. Discussion 4 A. First Amendment Claim

5 1. The Resolution Constitutes Government Speech that is Not Subject 6 to the First Amendment.

7 To state a First Amendment claim, a plaintiff must allege that the government action 8 complained of burdens protected speech, whether through restricting speech, punishing 9 speech, or chilling people from engaging in speech. See Index Newspapers LLC v. United 10 States Marshals Serv., 977 F.3d 817, 825 (9th Cir. 2020) (First Amendment injury can 11 include chilling speech); Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 12 1011, 1019 (9th Cir. 2009) (First Amendment injury can include forcing plaintiff to modify 13 speech). In order to state a claim under the First Amendment, the plaintiff’s right to 14 freedom of expression must have been in some way abridged by the challenged regulation 15 or act; if the challenged government action has no effect on or relation to the protected 16 expression, there can be no First Amendment injury. 17 As an initial matter, the Resolution is the Board of Supervisor’s expression of 18 opinion, which is distinct from an ordinance. San Diego City Firefighters, Local 145 v. Bd. 19 of Admin. of San Diego City Emps. Ret. Sys., 206 Cal. App. 4th 594, 607-08 (2012) 20 (resolution is an expression of an opinion while an ordinance is a local law prescribing a 21 rule of conduct). Plaintiffs’ FAC states in relevant part that “[t]he Resolution resolved: 22 ‘That it is the sense of the Board of Supervisors that health misinformation is declared a 23 public health crisis and the County of San Diego should commit to combatting health 24 misinformation and curb the spread of falsehoods that threaten the health and safety of our 25 residents.” See Plaintiffs’ FAC at ¶ 20; see also Resolution at ECF No. 5-4 at 2-3. Plaintiffs’ 26 FAC and arguments made in the Opposition fail to address the distinction between an 27 ordinance and the “sense of the Board of Supervisors” resolution, which is an expression 28 of their opinion. See Yang v. Cal. Dep’t of Soc. Servs., 183 F.3d 953, 958, and n.3 (9th Cir. 1 1999) (“sense of Congress resolutions do not have the force of law”); Alameda 2 Newspapers, Inc. v. City of Oakland, 95 F.3d 1406, 1415 (9th Cir. 1996) (“The written 3 resolution is in essence a declaration of principle or conscience. . . . The resolution has no 4 binding force on anyone.”). The Resolution is the Board of Supervisor’s position that health 5 misinformation constitutes a public health crisis that should be combatted. Plaintiffs have 6 failed to provide any evidence that it prohibits any speech or otherwise infringes on their 7 First Amendment rights. 8 Additionally, Plaintiffs’ FAC and Opposition fail to consider or otherwise address 9 that the Resolution constitutes government speech not subject to the First Amendment. See 10 Miller v. Cal. Com. On Status of Women, 151 Cal. App. 3d 693, 700 (1984) (there is a 11 “critical First Amendment distinction between the government’s addition of its own voice 12 and the government’s silencing of others.”); see also Pleasant Grove City v. Summum, 555 13 U.S. 460, 467-68 (2009) (a government has the “right to speak for itself” and “say anything 14 it wishes”) (internal citations and quotations omitted). As the Court noted in relevant part 15 in Miller: 16 If the government, i.e., the Governor and legislative leaders, cannot appoint a commission to speak on the topic without implicating 17 plaintiffs’ First Amendment rights it may not address any other 18 ‘controversial’ topics. If the government cannot address controversial topics it cannot govern. 19 20 151 Cal. App. 3d at 701 (internal citations and quotations omitted). Here, Plaintiffs fail to 21 cite any evidence or supporting authority why the Resolution at issue would not be 22 considered government speech and therefore not subject to the First Amendment. In light 23 of this failure, Plaintiffs’ vagueness and overbreadth arguments are also without merit. 24 Pleasant Grove, 555 U.S. at 467 (“The Free Speech Clause . . . does not regulate 25 government speech.”); see also Puphus v. Ayers, 249 F. Supp. 3d 238, 254 (D.D.C. 2017). 26 Ultimately, even assuming Plaintiffs alleged facts (as opposed to the speculation and 27 conclusion in the current FAC) that Defendant violated their First Amendment rights, the 28 alleged “tweets” made by Supervisor Fletcher set forth in Plaintiffs’ FAC and Opposition 1 are not properly before the Court for consideration at this time. See, e.g., Oppo. at 6 2 (“Supervisor Fletcher had tweeted on September 9, 2021; ‘Our action is not just symbolic, 3 we will invest resources to call out misinformation and provide people with facts.’”); see 4 also FAC ¶¶ 23-27. In interpreting the Resolution, the Court must first determine whether 5 the language at issue has a plain and unambiguous meaning with regard to the particular 6 dispute. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). “The plainness or ambiguity 7 of statutory language is determined by reference to the language itself, the specific context 8 in which that language is used, and the broader context of the statute as a whole.” Id. at 9 341. If the language is “unambiguous and the statutory scheme is coherent and consistent,” 10 the Court’s inquiry must cease. Id. at 340 (internal quotation marks omitted). Here, the 11 Court finds that the language of the Resolution has a plain and unambiguous meaning that 12 the County Board of Supervisors intended to proclaim that medical misinformation, within 13 the context of the COVID-19 pandemic, is harmful and should be combatted. Accordingly, 14 the Court’s inquiry must end on the face of the Resolution. For the reasons set forth herein, 15 Plaintiffs have not and cannot state a claim for a violation of their First Amendment rights 16 arising out of the Resolution, and the second cause of action must be dismissed with 17 prejudice. 18 Having dismissed Plaintiff’s sole federal claim, the Court’s “decision of whether to 19 exercise supplemental jurisdiction over the remaining state law claims ‘is purely 20 discretionary.’” Couture v. Wells Fargo Bank, N.A., No. 11-CV-1096-IEG (CAB), 2011 21 WL 3489955, at *4 (S.D. Cal. Aug. 9, 2011) (quoting Carlsbad Tech., Inc. v. HIF Bio, Inc., 22 556 U.S. 635, 639 (2009)); see also Holt v. First Franklin Fin. Corp., No. C 10-5929 SBA, 23 2011 WL 4595195, *4 (N.D. Cal. Sept. 30, 2011) (“When the federal claims that served as 24 the basis for jurisdiction are eliminated, either through dismissal by the court or by a 25 plaintiff amending his or her complaint, federal courts may decline to assert supplemental 26 jurisdiction over the remaining state law causes of action.”) (citing 28 U.S.C. § 1367(c)(3)). 27 Here, because the Court is dismissing the only federal claim at the outset of the 28 litigation, it is appropriate to decline supplemental jurisdiction over the state law claims. 1 || See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (“Where, as here, all 2 || federal-law claims in the action have been eliminated and only pendent state-law claims 3 ||remain, the district court has a powerful reason to choose not to continue to exercise 4 ||jurisdiction.”); see also Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) 5 ||(“A district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed 6 claims over which it has original jurisdiction.’”) (quoting 28 U.S.C. § 1367(c)(3)). 7 || Accordingly, Plaintiffs’ MOTION TO REMAND claims one and three through five is 8 || GRANTED. 9 In light of the foregoing, it is hereby ORDERED that Defendant’s Motion to 10 || Dismiss Plaintiffs’ Second Cause of Action for Violation of Free Speech Rights under the 11 ||First Amendment of the United States Constitution is GRANTED and that claim is 12 || DISMISSED WITH PREJUDICE. It is further ORDERED that because the Court 13 || declines supplemental jurisdiction over the remaining state law claims, Plaintiffs’ Motion 14 Remand is GRANTED IN PART. The Court hereby REMANDS to state court causes 15 action one and three through five in Plaintiffs’ FAC. The Clerk is ordered to close the 16 || case. 17 IT IS SO ORDERED. 18 || Dated: February 16, 2022 NO 19 QF | 20 Honorable Linda Lopez 5 United States District Judge 22 23 24 25 26 27 28