Pickup v. Brown

• Decision Date: 15 September 2015
• Docket Number: No. 2:12-cv-02497-KJM-EFB,2:12-cv-02497-KJM-EFB
• Parties: DAVID PICKUP, et al., Plaintiffs, v. EDMUND G. BROWN, JR., Governor of the State of California, in his official capacity, et al., Defendants, and EQUALITY CALIFORNIA, Intervenor-Defendant.
• Court: U.S. District Court — Eastern District of California

DAVID PICKUP, et al., Plaintiffs, v. EDMUND G. BROWN, JR., Governor of the State of California, in his official capacity, et al., Defendants,and EQUALITY CALIFORNIA, Intervenor-Defendant.

No. 2:12-cv-02497-KJM-EFB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 15, 2015

ORDER

This matter is before the court on defendants' motion to dismiss plaintiffs' complaint. Defs.' Mot., ECF No. 112. Also before the court is defendants' request for judicial notice in support of the motion. Request for Judicial Notice (RJN), ECF No. 112-1. Plaintiffs oppose the motion. ECF No. 117. The court held a hearing on this matter on March 13, 2015; Daniel Schmid appeared for plaintiffs, Alexandra Gordon and Tamar Pachter appeared for defendants, and Jaime Huling-Delaye observed proceedings on behalf of defendant-intervenor. For the following reasons, the court GRANTS the motion.

I. PROCEDURAL BACKGROUND

Plaintiffs filed their complaint and motion for a preliminary injunction on October 4, 2012, seeking to enjoin Senate Bill 1172, enacted as California Business and Professions Code §§ 865, 865.1, 865.2. Compl., ECF No. 1; Mot. for Prelim. Inj., ECF No. 3. On December 4, 2012, this court denied plaintiffs' motion on free speech grounds because the complaint did not show a likelihood of success on the merits of any claim. See Order Denying Prelim. Inj., ECF No. 80. The court also granted Equality California's (EQCA) request to intervene. ECF No. 81.

Plaintiffs appealed the decision on December 10, 2012, ECF No. 89, and on August 29, 2013, the Ninth Circuit affirmed this court's denial of injunctive relief and reversed in a consolidated decision a separate decision from this court that had granted relief. See Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012), rev'd sub nom. Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) and rev'd sub nom. Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), ECF No. 11. Applying rational basis review, the Ninth Circuit held that "SB 1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners or minor patients, is neither vague nor overbroad, and does not violate parents' fundamental rights." Pickup v. Brown, 740 F.3d 1208, 1222 (9th Cir.), cert. denied, ___ U.S. ___, 134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, ___ U.S. ___, 134 S. Ct. 2881 (2014).

Having stayed proceedings on January 29, 2013 pending the outcome of the appeal, this court lifted the stay on August 12, 2014. ECF No. 105. Defendants filed the instant motion to dismiss the remaining claims on November 20, 2014, which EQCA joined the next day. ECF Nos. 112, 113. After the motion hearing date was reset, plaintiffs filed their opposition on February 27, 2015 (ECF No. 117), and defendants replied on March 6, 2015 (ECF No. 118). On July 24, 2015, defendants filed a notice of supplementary authority in support of their motion to dismiss. ECF No. 122. They provided the court with the Ninth Circuit's recent decision in Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015), another free exercise challenge, andthe July 21, 2015 judgment on the pleadings entered in the related Welch v. Brown, Case No. 2:12-2484.¹

II. FACTUAL BACKGROUND

Detailed facts are set forth in this court's order denying the motion for a preliminary injunction, ECF No. 80, and the Ninth Circuit's opinion affirming the denial and remanding for further proceedings, ECF No. 100. The court briefly reviews the facts relevant to the instant motion here.

Plaintiffs are David Pickup, Christopher Rosik, Ph.D., Joseph Nicolosi, Ph.D., and Robert Vazzo, four California-licensed mental health providers who provide "sexual orientation change efforts" (SOCE); two non-profit organizations that promote and study SOCE, the National Association for Research and Therapy of Homosexuality (NARTH) and the American Association of Christian Counselors (AACC); and two sets of parents, Jack and Jane Doe 1 and Jack and Jane Doe 2, who are suing in their own right and as guardians ad litem of their minor children, plaintiffs John Doe 1 and John Doe 2, respectively. Compl. ¶¶ 18-26. They challenge SB 1172, signed into law by Governor Brown on September 20, 2012. ECF No. 80 at 7, and codified at California Business & Professional Code §§ 865, 865.1, 865.2, effective January 1, 2013. SB 1172 prohibits licensed mental health professionals in California from engaging in SOCE with persons under the age of 18. A mental health professional is defined as a

physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation.

Cal. Bus. & Prof. Code § 865(a).

SOCE includes aversion and nonaversion treatments intended to "change gay men's and lesbians' thought patterns by reframing desires, redirecting thoughts, or using hypnosis, with the goal of changing sexual arousal, behavior, and orientation." ECF No. 80 at 5 (quoting ECF No. 54-1 at 30). The Legislature, in the findings supporting SB 1172, found that "California has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts." ECF No. 80 at 10-11 (quoting SB 1172 (Findings & Decls. § 1(n)). The law does not expressly prohibit professionals from discussing SOCE with patients, from referring patients to unlicensed practitioners of change efforts, or otherwise from offering opinions on the subject of homosexuality, Pickup, 740 F.3d at 1215.

The complaint alleges that SB 1172 violates: (1) plaintiff therapists' right to free speech and plaintiff minors' right to receive information under the First Amendment; (2) plaintiff therapists' right to liberty of speech and the minors' right to receive information under Article I, § 2(a) of the California Constitution; (3) plaintiff parents' and minors' right to free exercise of religion; (4) parents' and minors' right to free exercise and enjoyment of religion under Article I, § 4 of the California Constitution; (5) plaintiff parents' parental rights under the First and Fourteenth Amendment; and (6) plaintiff parents' parental rights under Article I, § 7 of the California Constitution. Id. ¶¶ 259-337. After the Ninth Circuit's decision, plaintiffs believe the claims that remain viable are their as-applied challenges under the First and Fourteenth Amendments, as alleged in claims one and three of their complaint (Compl. ¶¶ 259-76, 296-308), and their facial challenge under the Free Exercise Clause of the First Amendment, as alleged in their third claim. Id. ¶¶ 296-308; Joint Status Report at 2, ECF No. 107.

III. JUDICIAL NOTICE

Defendants request the court take judicial notice of this court's December 4, 2012 order, ECF No. 80, denying plaintiffs' motion for a preliminary injunction. RJN at 2. Judicial notice may be taken of documents filed and orders or decisions entered in federal or state court. See Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290 n.1 (9th Cir. 1996) (court maytake judicial notice of the pleadings and court orders in earlier related proceedings). While a court need not take judicial notice in order to consider a prior order, a court may take notice of the order where it is relevant and its authenticity is undisputed. See Shalaby v. Bernzomatic, 281 F.R.D. 565, 570 (S.D. Cal. 2012), aff'd, 584 F. App'x 419 (9th Cir. 2014). Finding the order relevant and undisputed in its authenticity, the court grants defendants' unopposed request for judicial notice of this court's previously entered order.

IV. LEGAL STANDARD FOR MOTION TO DISMISS

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Twombl...