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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 18-2185 JGB (SHKx) Date March 6, 2019

Title Riley’s American Heritage Farms, et al. v. Claremont Unified School District, et al.

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Not Reported

Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):

None Present None Present

Proceedings: Order GRANTING-IN PART and DENYING-IN-PART Defendants’

Motion to Dismiss (Dkt. 21) (IN CHAMBERS)

Before the Court is Defendants’ motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). All Defendants jointly move to dismiss the claims against them. Defendants are
Claremont Unified School District (“the District”), James Elsasser (“Elsasser”), Steven
Llanusa (“Llanusa”), Hilary LaConte (“LaConte”), Beth Bingham (“Bingham”), Nancy Treser
Osgood (“Osgood”), David S Nemer (“Nemer”), Ann O’Connor (“O’Connor”), and Brenda
Hamlett (“Hamlett”) (collectively, “Defendants”). (“Motion,” Dkt. 21-1.) After considering
all papers filed in support of, and in opposition to, the Motion as well as arguments made at the
December 10, 2018 hearing, the Court GRANTS-IN-PART and DENIES-IN-PART
Defendants’ Motion.

I. BACKGROUND

On October 12, 2018, Plaintiffs Riley’s American Heritage Farms (“the Farm”) and
James Patrick Riley (“Riley”) (collectively, “Plaintiffs”) filed a complaint against the following
nine defendants: the District, Elsasser, Llanusa, LaConte, Bingham, Osgood, Nemer, O’Connor,
and Hamlett. (“Complaint,” Dkt. No. 1.) Elsasser is the Superintendent of the District. (Id.
¶ 7.) Llanusa, LaConte, Bingham, Osgood, and Nemer are members of the Board of Education.
(Id. ¶¶ 8-12.) O’Connor is the Principal of Chaparral Elementary School, which is in the
District. (Id. ¶ 13.) And Hamlett is the principal of Sumner Danbury Elementary School, which
is in the District. (Id. ¶ 14.) Plaintiffs allege three claims for relief:

1. Violation of civil rights—First and Fourteenth Amendments (42 U.S.C. §

1983) against all Defendants

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2. Conspiracy to violate civil rights—First and Fourteenth Amendments (42

U.S.C. § 1983) against Elsasser, Llanusa, LaConte, Bingham, Osgood, Nemer,
O’Connor, and Hamlett

3. Injunctive relief (42 U.S.C. § 1983) against all Defendants.

(Id.)

On November 7, 2018, Defendants filed this Motion. On November 15, 2018, Plaintiffs
filed their opposition. (“Opposition,” Dkt. No. 24.) Defendants replied on November 23, 2018.
(“Reply,” Dkt. No. 25.) The Court held a hearing on December 10, 2018. After the hearing the
Court ordered supplemental briefing. (Dkt. No. 29.) On December 17, 2018 the parties filed
supplemental briefs. (“Defendants’ Supplement,” Dkt. No. 30; “Plaintiffs’ Supplement,” Dkt.
No. 31.) In support of their Supplemental Brief, Defendants requested judicial notice of a news
article addressing Riley’s tweets.1 (“RJN,” Dkt. No. 30-1.)

II. FACTUAL ALLEGATIONS

Plaintiffs allege the following facts, which are assumed to be true for purposes of this
motion.

1
A court may take judicial notice of an adjudicative fact not subject to “reasonable
dispute,” either because it is “generally known within the territorial jurisdiction of the trial
court,” or it is capable of accurate and ready determination by resort to sources whose “accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201. Under Federal Rule of Evidence 201, “[a]
court must take judicial notice if a party requests it and the court is supplied with the necessary
information.” Fed. R. Evid. 201(c)(2). Proceedings of other courts, including orders and filings,
are also the proper subject of judicial notice when directly related to the case. See United States
ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)
(stating that courts “may take notice of proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue.”) Judicial
notice is also appropriate for “materials incorporated into the complaint or matters of public
record.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). But disputed facts
contained within a filing and the factual determinations by a judge in another case "ordinarily are
not admissible for their truth in another case through judicial notice." Wyatt v. Terhune, 315
F.3d 1108, 1114 n.5 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.
2001).

The Court is entitled to “take judicial notice of publications introduced to indicate what
was in the public realm at the time, not whether the contents of those articles were in fact true.”
Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010); see
also Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1136 (C.D.
Cal. 2011). Accordingly, the Court GRANTS Defendants’ RJN.

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The Farm is a “living history farm.” (Compl. ¶ 16.) About half of the Farm’s gross
revenue comes from school fieldtrips. (Id. ¶ 18.) The field trip programs include immersive
presentations focused on the American Revolution, Civil War, American colonial farm life,
California Gold Rush, and pioneering homesteading history of the Oak Glen region. (Id. ¶ 19.)
The Farm works diligently to present an authentic historical experience and is careful to avoid
editorializing or inserting into their presentations commentary on contemporary political or
cultural issues. (Id. ¶ 26.) The Farm maintains a website, Facebook page, and Twitter account.
(Id. ¶ 29.) The District has organized regular field trips to the Farm since 2001. (Id. ¶ 27.) Over
the past five years, the District has arranged roughly ten field trips per year. (Id.)

Riley is one of the Farm’s principal shareholders. (Id. ¶ 30.) Riley maintains his own
personal Facebook and Twitter accounts through which he comments on politics, religion, and
social relations. (Id.) Riley’s tone in many of these posts “may fall even farther below George
Will/Hendrik Hertzberg levels.” (Id. ¶ 31.) Some of Riley’s more controversial posts include
the following:

 “What is this country coming to if a girl can’t even use her bosoms to smack
customers and then sue the president for unwanted sexual advances?”

 “I have just realized we may have been the last generation born with only two
genders.”

 Comparisons of Senator Kirsten Gillibrand to an ice sculpture

 Expression that people inordinately fear white supremacy even though it is

little more than “3 guys who live in two different counties in Arkansas” while
“black supremacy” warrants greater concern

 Juxtaposition of Black Lives Matters members and ISIS

(Id. ¶ 32.) Riley’s commentary on these matters did not appear on the Farm’s social media
accounts or on the Farm’s website. (Id. ¶ 34.)

In August 2018, a person Plaintiff calls “Conspirator A,” who is not an employee or
official of the District, was angered by Riley’s personal social media activity. (Id. ¶ 36.)
Conspirator A joined with others, in particular with school districts, “to retaliate against
Plaintiffs for Mr. Riley’s First Amendment-protected expression.” (Id. ¶ 37.) Principals
O’Connor and Hamlett joined this conspiracy and agreed to retaliate against Plaintiffs. (Id. ¶
38.) Specifically, they prohibited teachers at their respective schools from arranging field trips to
the Farm. (Id.) Plaintiffs “are informed and believe and on that basis allege that [Superintendent
Elsasser] was informed of, approved of, endorsed and ratified the decision of Defendants
O’Connor and Hamlett . . . .” (Id. ¶ 40.) Alternatively, Plaintiffs allege Elsasser had final
policymaking authority for the District and ratified this action. (Id. ¶ 47.)

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On September 25, 2018, Plaintiffs sent a letter to the District, Superintendent, and
members of the Board of Education alerting them to the alleged retaliatory action, setting forth
relevant legal authority, and demanding a remedy. (Id. ¶ 41.) The District responded by letter
on October 2, 2018. (Id. ¶¶ 42-45.) The District’s letter referenced Riley’s social media
commentary and asserted that “[n]othing in the First Amendment obligates the District to
continue doing business with any individual or organization that makes public statements which
are inimical to the District’s educational mission . . . The District has . . . no obligation to expose
children to an individual who engaged in these crude and tasteless comments.” (Id. ¶ 43.) The
letter further insinuates the action was necessary to “secure and protect” students from
“discrimination and harassment” and to avoid “expos[ing] them to inappropriate sexist or racist
attitudes” or “sexually explicit, indecent or lewd speech.” (Id. ¶ 44.) The letter did not assert
any of the commentary it found objectionable had ever been expressed on field trips to the Farm.
(Id. ¶ 45.) Plaintiffs contend this letter reflects that the Board of Education fully endorsed and
ratified Elsasser, O’Connor, and Hamlett’s unconstitutional actions. (Id. ¶¶ 42, 46.)

III. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), a party may bring a
motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6)
must be read in conjunction with Federal Rule of Civil Procedure 8(a), which requires a “short
and plain statement of the claim showing that a pleader is entitled to relief,” in order to give the
defendant “fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Horosny v. Burlington Coat Factory, Inc., No.
15-05005, 2015 WL 12532178, at *3 (C.D. Cal. Oct. 26, 2015). When evaluating a Rule 12(b)(6)
motion, a court must accept all material allegations in the complaint — as well as any reasonable
inferences to be drawn from them — as true and construe them in the light most favorable to the
non-moving party. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC Ecology
v. U.S. Dep’t of Air Force, 411 F.3d 1092, 1096 (9th Cir. 2005); Moyo v. Gomez, 32 F.3d 1382,
1384 (9th Cir. 1994).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555 (citations omitted). Rather, the allegations in the
complaint “must be enough to raise a right to relief above the speculative level.” Id.

To survive a motion to dismiss, a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570; Ashcroft v. Iqbal, 556 U.S. 662,
129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it stops
short of the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 556). The Ninth Circuit has clarified that (1) a complaint

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must “contain sufficient allegations of underlying facts to give fair notice and to enable the
opposing party to defend itself effectively,” and (2) “the factual allegations that are taken as true
must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing
party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652
F.3d 1202, 1216 (9th Cir. 2011).

IV. DISCUSSION

A. Riley’s Standing

Defendants argue Riley does not have standing because the alleged adverse action was
taken against the Farm, not Riley personally. (Mot. at 9-10.) Specifically, Defendants assert the
shareholder standing rule precludes Riley from asserting a valid claim for unconstitutional
termination of a business relationship because the business relationship existed between
Defendants and the Farm, a corporation in which Riley holds shares. (Id. at 10; Reply at 3.)

In the Ninth Circuit, a plaintiff who owns stock in a corporation does not have standing to
assert damages suffered by the corporation, even if the alleged wrong affects the value of his
shares in the company. Erlich v. Glasner, 418 F.2d 226, 227-228 (9th Cir. 1969). In Erlich, a
shareholder plaintiff alleged that unconstitutional action against his business interfered with his
ability to operate his business and earn a living. Id. at 227. The plaintiff alleged he sustained
“damage and injuries to his business and right and ability to earn a livelihood for himself and his
family.” Id. (internal quotations omitted). Thus, the Erlich plaintiff asserted for himself, a
shareholder, the same damages and injury suffered by his corporation. But Erlich does not
address the standing of shareholder plaintiffs who allege an injury distinct from the damage to the
corporation in which they hold an interest.

When a shareholder plaintiff asserts an injury distinct from that suffered by his
corporation, he has standing to vindicate his injury, even if it arises from the same conduct
causing injury to his corporation. Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1318-1319
(9th Cir. 1989) (“a shareholder does have standing where he or she has been injured directly and
independently of the corporation”). In Soranno’s Gasco, the shareholder plaintiffs publicly
criticized certain county regulations and alleged the county retaliated against them by suspending
his company’s permits and by telling his customers the permits were suspended and that the
company could not lawfully delivering its product. Id. at 1312. The company plaintiff and
shareholder plaintiffs sought damages for loss of business profits and for mental and emotional
distress caused by the county’s conduct. Id. at 1313. The Ninth Circuit found the shareholder
plaintiffs asserted direct and independent injuries. Id. at 1318. Specifically, the court noted that
the retaliatory actions were a response to the shareholder plaintiffs’ exercise of their own First
Amendment rights and that the shareholder plaintiffs contended they suffered mental and
emotional distress because of the county’s actions. Id. at 1319. This was a direct and
independent injury for standing purposes. Id. at 1318-19. It was not material that the injury arose
from the same conduct causing the corporation’s injuries, as “the same conduct can result in

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both corporate and individual injuries.” Id. (citing Gomez v. Alexian Bros. Hosp., 698 F.2d 1019,
1021 (9th Cir. 1983)).

Here, Riley alleges circumstances almost identical to the circumstances in Soranno’s

Gasco. He alleges he exercised his First Amendment rights by commenting on matters of public
concern and that Defendants retaliated for this expression by terminating all business with his
company, the Farm. (See generally Compl.) Like in Soranno’s Gasco, the retaliatory action was
allegedly a response to Riley exercising his own First Amendment rights. Riley further alleges
the retaliatory acts damaged his own reputation and caused “[m]ental and emotional distress,
mortification, worry, anguish, and embarrassment . . . .” (Compl. ¶ 56, 63.) Thus, Riley alleges
his own direct and independent injuries and sufficiently pleads his standing.

Accordingly, the Court finds Riley has standing to pursue his claims.

B. Retaliation

The government “‘may not deny a benefit to a person on a basis that infringes his
constitutionally protected . . . freedom of speech’ even if he has no entitlement to that benefit.”
Board of Cty. Com’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 674 (1996) (quoting
Perry v. Sindermann, 408 U.S. 593, 597 (1972)). To state a claim for First Amendment
retaliation, a plaintiff must allege that (1) he engaged in expressive conduct addressing a matter of
public concern; (2) the government officials took an adverse action against him; and (3) his
expressive conduct was a substantial or motivating factor for the adverse action. O’Brien v.
Welty, 818 F.3d 920, 932 (9th Cir. 2016); Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923
(9th Cir. 2004). If an independent contractor plaintiff meets this burden, government officials
can avoid liability by demonstrating either (a) under the balancing test in Pickering v. Board of
Education, 391 U.S. 563 (1968), legitimate administrative interests in promoting efficient service-
delivery and avoiding workplace disruption outweigh the contractor’s free speech interests; or
(b) under a mixed motives analysis in Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 287 (1977), they would have taken the same actions in the absence of the
contractor’s expressive conduct. Alpha Energy, 381 F.3d at 923.

Defendants argue Plaintiffs fail to state a claim for three reasons: (1) the relationship
between the Farm and the District is not constitutionally protected; (2) the Farm did not engage
in constitutionally protected speech and cannot state a claim; and (3) the Pickering analysis
favors Defendants. (Mot. at 11-14.)

1. Relationship Between the Farm and the District

Defendants argue the relationship between the Farm and the District is not
constitutionally protected because the relationship was not comparable to an employer-employee
relationship. (Mot. at 11.) The Court interprets this argument to assert that the Farm was not an
“independent contractor” as contemplated in the applicable precedent. The Court agrees that

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the Farm is not an independent contractor but disagrees that the Farm lacks constitutional
protection.

In 1996, the Supreme Court extended the First Amendment protection afforded to
government employees to independent contractors. See Umbehr, 518 U.S. 668. The Court held
that the Pickering balancing test could be adjusted to weigh the government’s interests as
contractor rather than as employer to determine the extent of protection. Umbehr, 518 U.S. at
673. The Court noted unconstitutional conditions precedent exist on a spectrum ranging from
government employees, who have the closest relationship with the government, to private
citizens with less close relationships with the government and whose viewpoints on matters of
public concern the government has no legitimate interest in repressing. Id. at 680. Independent
contractors lie somewhere between these poles. Id. In extending Pickering’s balancing test to
independent contractors, the Supreme Court discussed the comparable relationship between
government employees and independent contractors. See id. at 673-81. The Umbehr Court
noted that the “similarities between government employees and government contractors with
respect to this issue are obvious.” Id. at 674. The Court discussed the government’s interests in
being able to terminate employees and contractors for poor performance and to avoid the
appearance of corruption. Id. The Court further noted its aversion to leaving “First
Amendment rights unduly dependent on whether state law labels a government service
provider’s contract as a contract of employment or a contract for services, a distinction which is
at best a poor proxy for the interests at stake.” Id. at 679. The Court found determining
constitutional claims on such formalistic distinctions would mean government agencies could
easily manipulate who will be protected because “independent contractors are often employed to
perform ‘tasks that would otherwise . . . be performed by salaried government employees.’” Id.
(quoting Logue v. United States, 412 U.S. 521, 532 (1973)).

The Supreme Court also extended Pickering protection to “regular provider of services”
whose relationship was “based on longstanding practice, he had reason to believe would
continue.” O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 714-15, 721 (1996).
The O’Hare Truck Court similarly emphasized the similarities between independent contractors
and government employees. See generally, id.

Thus, in extending Pickering protection to independent contractors, it was central to the

Supreme Court’s reasoning that the services provided were the type of services that could
ordinarily be provided by government employees. In Umbehr, the plaintiff provided trash
hauling services for the county. Umbehr, 518 U.S. at 671. In O’Hare Truck, the plaintiff
provided towing services for a city’s police department when the department receive tow
requests. O’Hare Truck, 518 U.S. at 715. In Alpha Energy Savers, the plaintiff provided
insulation and weatherization services for the county’s low-income residents. Alpha Energy
Savers, 381 F.3d at 921. In The Yadin Co., Inc. v. City of Peoria, the plaintiff provided towing
services to the city. 2007 WL 63611, at *1 (D. Ariz. Jan. 8, 2007). In each of these cases, the
independent contractor plaintiffs provided government services which could be performed by
government employees.

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Here, the Farm provides no such government services. Unlike the towers, weatherizers,
and trash haulers above, the Farm does not perform outsourced governmental functions. Field
trips to the Farm do not fulfill a municipal function or provide a necessary government service.
Instead, the Farm provides discrete and discretionary educational experiences to students in the
District. Thus, the Farm provides no services that are ordinarily provided by government
employees. The relationship here does not motivate concerns analogous to the concerns of
government employees discussed in Umbehr or O’Hare Truck. On the spectrum of government
entanglement, the Farm falls much closer to private citizen than to government employee.
Accordingly, the Farm is not an “independent contractor” such that Pickering’s balancing test
applies. The Farm’s relationship with the District is more analogous to the relationship between
a government entity and a company from which it purchases office supplies or a restaurant from
which it occasionally, but regularly, orders catering services. In other words, the relationship is
more analogous to a private contractual relationship rather than an independent contractor
relationship.

Not all entities doing business with the government are included within the Pickering
framework. See, e.g., Alameda Newspapers v. City of Oakland, 95 F.3d 1406 (9th Cir. 1996). On
the spectrum of government relationships, the Farm lies between independent contractor and
ordinary citizen. Pickering’s analysis does not extend to plaintiffs falling in this range.
Accordingly, the government has even less interest in regulating Plaintiffs’ viewpoints on matters
of public concern than it would if the Farm were an independent contractor. See Umbehr, 518
U.S. at 680. Defendants assert the relevant question is whether Plaintiffs were improperly
denied a type of governmental benefit or privilege which triggers First Amendment scrutiny.
(Defendants’ Suppl. at 2 (citing Hyland v. Wonder, 972 F.2d 1129, 1135 (9th Cir. 1992)).) They
contend “this question must be answered in the negative.” (Id.) But the language in Hyland
does not mandate such an answer. In Hyland, the Ninth Circuit noted that a loss of a volunteer
opportunity in retaliation for protected speech triggered such scrutiny. 972 F.3d at 1135. After
noting that retaliatory acts “with less momentous consequences” are “equally egregious in the
eyes of the Constitution” as more momentous retaliatory acts, the court stated the “critical
questions is simply whether [a plaintiff] has alleged a loss of a valuable governmental benefit or
privilege in retaliation for his speech.” Id. “[E]ven though a person has no ‘right’ to a valuable
governmental benefit and even though the government may deny him the benefit for any number
of reasons, there are some reasons upon which the government may not rely. It may not deny a
benefit to a person on a basis that infringes his constitutionally protected interests—especially,
his interest in freedom of speech.” Perry, 408 U.S. at 597.

Defendants cancelled scheduled field trips to the Farm and created a policy prohibiting
future field trips. Terminating this benefit is a matter of discretion reserved to the District and
its agents; however, Defendants’ cannot terminate the benefit for unconstitutional, retaliatory
reasons. Id. Because Plaintiffs plausibly allege the cancelled field trips and prohibition of field
trips were in retaliation for Riley’s online political commentary, Plaintiffs state a claim for First
Amendment retaliation. And Defendants cannot avail itself of the Pickering balancing test.

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The Court rejects Defendants’ contention that the government speech doctrine insulates
them as a matter of law from Plaintiffs’ retaliation claim. In support of their argument,
Defendants cite cases discussing the broad discretion public schools retain in designing
curriculum. (See Defendants’ Suppl. at 2-5 (citing Arkansas Educational Television Commission
v. Forbes, 523 U.S. 666, 674 (1998); Rust v. Sullivan, 500 U.S. 173 (1991); Chiras v. Miller, 432
F.3d 606 (5th Cir. 2005)).) These cases concern the government speech doctrine and discuss the
lack of a viewpoint neutrality requirement when the government chooses to speak—for example,
in designing curriculum, selecting textbooks, or prohibiting certain types of advice as a condition
on receipt of federal funds. Arkansas Educational Television 523 U.S. 666; Rust, 500 U.S. 173;
Chiras, 432 F.3d 606. Thus, these cases address affirmative policy-making decisions. Not one of
these cases addresses retaliation. And not one of these cases stands for the proposition that the
government speech doctrine permits retaliation. Accordingly, although the government speech
doctrine affords Defendants wide discretion in designing curriculum, it does not afford them
wide discretion to retaliate such that Plaintiffs’ claims may be dismissed as a matter of law.

Finally, Defendants contend that even if a First Amendment analysis applies, Plaintiffs’
claims fail as a matter of law because the analysis must account for pedagogical concerns.
(Defendants’ Suppl. at 6-8.) Defendants cite cases discussing the state’s interest in
disassociating itself from offensive speech and in maintaining its education system. (Id. (citing
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Jeglin v. San Jacinto Unified Sch.
Dist., 827 F. Supp. 1459, 1461 (C.D. Cal. 1993)).) In Jeglin, a district court noted the state has
“inherent authority to prescribe and control conduct in the schools,” and found “the level of
disturbance required to justify intervention is relatively lower . . . than it might be on a street
corner[.]” 827 F. Supp. at 1461. In Hazelwood, the Supreme Court found schools retain
editorial control over school-sponsored expressive activity if the school’s actions are “reasonably
related to legitimate pedagogical concerns.” 484 U.S. at 273. The Hazelwood Court justified
greater control over student expression, in part, to assure the views of the individual student are
not erroneously attributed to the school. Id. at 271. Although neither of these cases arise in the
retaliation context, the Court notes the importance of pedagogical concerns. However, at this
stage, it is improper to determine whether Defendants had legitimate pedagogical concerns that
might justify their conduct. Both Hazelwood and Jeglin discuss a fully developed factual record.
See Hazelwood, 484 U.S. 260; Jeglin, 827 F. Supp. 1459. Defendants’ contend Exhibit A
establishes that the Farm itself “had already become [a] lighting rod[] for political and social
controversy” by the time the District’s administrators cancelled field trips and prohibited future
ones. (Defendants’ Suppl. at 8.) They assert they were “well within their discretion to
determine that a politically charged environment such as that was not appropriate for elementary
school students.” (Id.) But even considering Exhibit A, there is not enough before the Court to
conclude as a matter of law that Defendants’ pedagogical concerns justify the alleged retaliatory
conduct. Exhibit A does not describe the Farm as a politically charged place, as the article
focuses on Riley’s personal Twitter handle. The only discussion of the Farm itself is a quote of
Riley’s statement on the Farm’s website explaining his tweets reflected his personal convictions
with no effect on the Farm or the content of the living history programs. (Ex. A.) There is no
indication of any change to the pedagogical experience at the Farm. Thus, although planning
field trips may be a pedagogical matter entrusted to the District’s discretion, the private views of

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a field trip venue owner do not motivate legitimate pedagogical concerns as a matter of law.
Construing all inferences in favor of Plaintiffs, the Complaint plausibly alleges the decision to
cancel field trips and prohibit future ones was retaliatory in nature and not motivated by
pedagogical concerns.

2. Constitutionally Protected Speech

Defendants’ argue the Farm did not engage in constitutionally protected speech and,
therefore, cannot state a claim for First Amendment retaliation. (Mot. at 12.) This is a losing
argument. Soranno’s Gasco, discussed in Part IV.A, concerns a parallel context in which the
company contracting with the government as well as the individual owner whose speech
motivated the retaliation allege valid retaliation claims. 874 F.2d at 1318-1319. Additionally, in
O’Hare Truck, the company was removed from a rotating list of towing services in retaliation for
the owner’s personal speech. 518 U.S. 712. Thus, the Court is unpersuaded by Defendants’
argument.

For the reasons above, the Court finds Plaintiffs state a claim for First Amendment
retaliation.

C. Supervisory Liability

1. Superintendent Elsasser

Defendants argue the Complaint does not allege sufficient facts to hold Superintendent
Elsasser liable for the acts of Principals O’Connor and Hamlett. (Mot. at 14-15.) Specifically,
they assert allegations of Elsasser’s involvement are conclusory because they do not allege facts
plausibly supporting his alleged involvement or ratification. (Id.) The Court agrees.

An action under Section 1983 requires a plaintiff to show (1) the offending conduct was
committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff
of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir.
1989); Fernandez v. California Highway Patrol, 2015 WL 12911511, at *2 (C.D. Cal. May 19,
2015). There is no respondeat superior liability under Section 1983, and a government official
may be held liable only for his own conduct. Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1097
(9th Cir. 2013) (citing Iqbal, 556 U.S. 662). This requires that a defendant “‘does an affirmative
act, participates in another’s affirmative acts, or omits to perform an act which he is legally
required to do that causes the deprivation . . . .’” Lacey v. Maricopa Cty., 693 F.3d 896, 915 (9th
Cir. 2012) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). A supervisor may be
liable under Section 1983 for the constitutional violations of a subordinate “‘if the supervisor
participated in or directed the violations, or knew of the violations and failed to act to prevent
them.’” Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013) (quoting Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989)). A supervisor may be liable for his “acquiescence in
the constitutional deprivation of which a complaint is made.” Cunningham v. Gates, 229 F.3d
1271, 1293 (9th Cir. 2000).

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Here, Plaintiffs’ sole allegation of Elsasser’s involvement is that “Plaintiffs are informed
and believe and on that basis allege that the Superintendent was informed of, approved of,
endorsed and ratified the decision of Defendants O’Connor and Hamlett, as principals of the
elementary schools they supervised, to prohibit teachers from patronizing Riley’s Farm for field
trips.” (Compl. ¶ 40.) Paragraph 40 is a legal conclusion entitled to no presumption of truth.
Plaintiffs allege no facts supporting their belief that Elsasser knew of the prohibition or endorsed
it. For example, Plaintiffs do not allege that Elsasser regularly met with school principals or that
he concerned himself with the field trip choices of each school. Thus, Plaintiffs cannot plausibly
allege Elsasser knew of the prohibitions, much less that he approved or endorsed them. This is
the sole allegation concerning Elsasser’s involvement. Thus, even if Plaintiffs had stated a claim
for retaliation, Plaintiffs do not plausibly allege any conduct for which Elsasser may be liable.

Accordingly, the Court GRANTS Defendants’ Motion as to all claims against Elsasser.

2. Members of the Board of Education

Defendants also contend the Complaint does not allege sufficient facts to hold members
of the Board of Education liable for the acts of Principals O’Connor and Hamlett. (Mot. at 16-
17.) The Complaint alleges the October 2, 2018 letter “fully endors[ed] the edcisions of
Defendants O’Connor and Hamlett . . . .” (Compl. ¶¶ 42, 46.) The letter cites some of Riley’s
commentary and contends “[n]othing in the First Amendment obligates the District to continue
doing business with any individual or organization that makes public statements which are
inimical to the District’s educational mission . . . The District . . . has no obligation to expose
children to an individual who engaged in these crude and tasteless comments.” (Id. ¶ 43.) In the
letter, the District further asserts the action was necessary to “secure and protect” students from
“discrimination and harassment” and to avoid “expos[ing] them to inappropriate sexist or racist
attitudes” or “sexually explicit, indecent or lewd speech.” (Id. ¶ 44.)

Defendants assert the District’s October 2, 2018 letter is an inadmissible statement made
during compromise negotiations. (Mot. at 16.) Plaintiffs respond that there was nothing of
compromise in the letter. (Opp’n at 23.) The Court notes that a motion to dismiss is not the
proper mechanism to challenge the admissibility of the October 2, 2018 letter. The Court further
notes that Rule 408 prohibits admitting compromise negotiations to prove the validity of a claim
but allows admission for other purposes. Fed. R. Evid. 408. Evidence relating to settlement
negotiations “‘has [ ] been admitted by courts for additional purposes other than establishing
liability, including . . . to show knowledge and intent . . . .’” Asics America Corp. v. Lutte
Licensing Group LLC, 2014 WL 10538912, at *6 (C.D. Cal. Apr. 28, 2014) (quoting Zurich Am.
Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 689 (7th Cir. 2005)). The Court notes that one use
of the letter is to show that the members of the Board of Education had knowledge of the
prohibitions. The Court also notes that without the letter, it has insufficient information to

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conclude it was a compromise negotiation. Thus, the Court finds that the October 2, 2018 letter
is admissible for the purposes of this Motion.2

Defendants assert that, even considering the letter, Plaintiffs cannot plausibly allege
ratification because “the mere fact that [the District] declined to accept [P]laintiffs’ assertions of
law and fact does not mean that the individual Board members ‘ratified’ the actions of the
individual school site principals, with knowledge of their unconstitutionality. . . [T]he letter from
counsel clearly provides that [the District] does not believe that its administrators violated
[P]laintiffs’ constitutional rights.” (Mot. at 16.) As alleged, the letter supports an inference that
the members of the Board “knew of the violations and failed to act to prevent them.” Taylor,
880 F.2d at 1045 (9th Cir. 1989). The members of the Board of Education, through their letter,
allegedly insinuated that the actions of Principals O’Connor and Hamlett was “necessary” to
protect students. (Compl. ¶ 44.) This assertion goes beyond a statement of authorities and/or
legal arguments and supports an inference that the members Board of Education endorsed the
prohibitions and failed to prevent Plaintiffs’ alleged injury. Thus, the Complaint plausibly alleges
facts supporting supervisory liability for members of the Board of Education.

Finally, Defendants argue the members of the Board of Education have “absolute
immunity from personal liability under Section 1983 for their legislative activities.” (Reply at 8
(citing Tenney v. Brandhove, 341 U.S. 367, 379 (1951)).) Defendants raise this argument for the
first time in their Reply. They cannot do this. See United States v. Bohn, 956 F.2d 208, 209 (9th
Cir.1992) (noting courts ordinarily decline to consider arguments raised for the first time in a
reply brief); United States ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (“It
is improper for a moving party to introduce new facts or different legal arguments in the reply
brief than those presented in the moving papers.”). Accordingly, the Court declines to consider
any legislative immunity arguments at this time. Additionally, it is not clear to the Court that
absolute legislative immunity is available to public school officials, who are eligible to assert
qualified immunity. See Doe by and Through Doe v. Petaluma City School Dist., 54 F.3d 1447,
1448-49 (9th Cir. 1995).

Thus, Plaintiffs allege sufficient facts to support the supervisory liability of the members
of the Board of Education. Accordingly, the Court DENIES Defendants’ Motion as to the
members of the Board of Education.

D. Sovereign Immunity and Monell Liability

Defendants argue the District is immune from liability under all three causes of action as
it is a state agency immune from suit under the Eleventh Amendment. (Mot. at 17-18.) Plaintiffs
concede that California school districts are state agencies for Eleventh Amendment purposes.
(Opp’n at 24.) However, to preserve the issue for a potential appeal, Plaintiffs assert the
increased use of liability insurance by school districts may warrant re-examining the blanket rule
extending sovereign immunity to California school districts. (Id.)

2
Defendants may re-raise this objection during future stages of this litigation.

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It is “well established that agencies of the state are immune under the Eleventh
Amendment from private damages or suits for injunctive relief brought in federal court.” Savage
v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003). The Ninth Circuit holds that
California school districts are “arms of the state” entitled to sovereign immunity. Belanger v.
Madera Unified School District, 963 F.2d 548, 250-51 (9th Cir. 1992). In 2017, the Ninth Circuit
reaffirmed that California school districts are arms of the state and continue to enjoy sovereign
immunity. Sato v. Orange County Department of Education, 861 F.3d 923, 934 (9th Cir. 2017).
Because of this well-established, binding precedent, the Court finds the District is an arm of the
state immune from suit. The Court declines Plaintiffs’ invitation to re-examine this precedent.

Defendants further contend Plaintiffs do not allege sufficient facts to state a claim for
Monell liability against the District. (Mot. at 17-18.) Because the District is immune from suit,
the Court need not consider this argument.

For the reasons above, the Court GRANTS Defendants’ Motion as to all claims against
the District.

V. LEAVE TO AMEND

Generally, a “district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly be cured by
allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)
(internal quotation marks and citation omitted). Here, the Court identifies specific factual
deficiencies which may be cured by amendment. Thus, the Court GRANTS LEAVE TO
AMEND. However, the Court notes Plaintiffs cannot amend their Complaint as to the District.

VI. CONCLUSION

For the reasons above, the Court GRANTS-IN-PART and DENIES-IN-PART

Defendants’ Motion to Dismiss. The Complaint is DISMISSED WITH PREJUDICE as to the
District. The Complaint is DISMISSED WITH LEAVE TO AMEND as to Defendant Elsasser.
The Court DENIES the Motion as to the following Defendants: Llanusa, LaConte, Bingham,
Osgood, Nemer, O’Connor, and Hamlett.

Plaintiffs should file an amended complaint, if any, by March 18, 2019.

IT IS SO ORDERED.

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