Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUMANA FOREST RETREAT, et al., Case No.: 24-cv-1196-RSH-DDL 12 Plaintiffs, ORDER ON DEFENDANT THE 13 v. COUNTY OF SAN DIEGO’S MOTION TO DISMISS 14 COUNTY OF SAN DIEGO, et al., PLAINTIFFS’ THIRD AMENDED 15 Defendants. COMPLAINT 16 [ECF No. 62] 17 18 19 20 Before the Court is the County of San Diego’s (“the County’s”) motion to dismiss 21 Plaintiffs’ Third Amended Complaint (ECF No. 52, “TAC”). ECF No. 62. Pursuant to 22 Local Civil Rule 7.1(d)(1), the Court finds the motion presented appropriate for resolution 23 without oral argument. For the reasons below, the Court GRANTS IN PART and 24 DENIES IN PART the motion. 25 I. BACKGROUND 26 A. Plaintiffs’ Allegations 27 The instant action arises from Defendants’ permitting and code enforcement actions 28 taken with respect to property Plaintiffs purchased intending for religious use. The TAC 1 alleges as follows. 2 1. The Valley Center Property 3 Plaintiff William Chu is a professor of Buddhist studies and an ordained Buddhist 4 minister. TAC ¶¶ 10–11. Plaintiff Sumana Forest Retreat (“SFR”) is a nonprofit Buddhist 5 religious organization. Id. ¶ 13. SFR practices and teaches Forest Tradition Theravada 6 Buddhism, a faith centered on meditation in secluded, remote forest settings. Id. ¶¶ 23–25. 7 Dr. Chu is the leader and founding minister of SFR. Id. ¶¶ 11, 16. In 2018, Dr. Chu 8 purchased a 9.9-acre property located at 11923 Via Campestre, Valley Center, California 9 (the “Valley Center Property”). Id. ¶ 16. SFR leases the Valley Center Property from Dr. 10 Chu. Id. ¶ 18. Shortly after purchasing the property, Plaintiffs began preparing to host 11 meditative retreats. Id. ¶ 28. To that end, between 2018 and 2019, Plaintiffs constructed 12 ten yurts for retreatants to meditate and rest. Id. ¶¶ 31, 68. 13 2. Major and Minor Use Permits 14 The Valley Center Property is located in the A70 Zoning District of San Diego 15 County—a Limited Agricultural Use District. Id. ¶¶ 35–36. Within the A70 District, a land 16 use permit is required for certain uses of property. Id. ¶¶ 39–65. 17 Specifically, under the County’s zoning ordinance, property owners do not need a 18 permit to use property for “essential services”—which include “public passive parks and 19 recreational areas.” Id. ¶¶ 40–41. In contrast, property owners must obtain a “Minor Use 20 Permit” for “small schools, farm labor camps, and cottage industries” and a “Major Use 21 Permit” to use land for, among other purposes, “religious assembly.” Id. ¶¶ 47, 57; ECF 22 No. 52-5 at 3–4. Major Use Permit applications must be approved by the County Board of 23 Supervisors or Planning Commission. TAC ¶ 63. In contrast, Minor Use Permits may be 24 25 1 The facts as alleged in this case were set forth in the Court’s prior February 24, 2025 26 and May 5, 2025 Orders on the County’s Motion to Dismiss Plaintiffs’ First Amended and 27 Second Amended Complaint, respectively. ECF Nos. 21, 29. For completeness, the Court repeats this background and supplements it with relevant allegations set forth in Plaintiffs’ 28 1 approved by the Director of Planning & Development Services. TAC ¶ 64; ECF No. 52- 2 11 at 2. Applying for a Major Use Permit may also entail additional costs. TAC ¶ 65. 3 3. Permit Pre-Application 4 In 2019, Dr. Chu began the process of applying for a land use permit. Id. ¶ 66. In 5 2020, defendant Brandy Contreras, a Land Use/Environmental Planner in the County’s 6 Code Compliance Division, allegedly entered the Valley Center Property on three separate 7 occasions and photographed the property extensively without notice or consent. Id. ¶ 71. 8 Subsequently, on May 11, 2020, Contreras emailed Dr. Chu, stating that there was “no 9 issue from Code Compliance” and advised him to “continue moving forward with filing a 10 Major Use Permit pre-application meeting form.” ECF No. 52-12 at 2. 11 In January 2021, Dr. Chu submitted a Major Use pre-application. TAC ¶ 75; ECF 12 No. 52-13 at 2. On February 1, 2021, the County advised Plaintiffs it would review the 13 application. TAC ¶ 76. Nevertheless, Plaintiffs did not hear anything from the County 14 regarding their pre-application for the next two years. Id. ¶ 77. During this same general 15 time period, Contreras allegedly conducted inspections of the Valley Center Property in 16 May 2021, January 2022, and January 2023 “randomly, and without permission or notice.” 17 Id. ¶ 78. 18 Dr. Chu and other SFR members later met with County officials to discuss Plaintiffs’ 19 application. Id. ¶ 81. The TAC alleges that over the course of two meetings, County 20 Officials informed Chu and other SFR members that the County would not approve 21 Plaintiffs’ application because of the yurts erected on the Valley Center Property. Id. ¶¶ 22 82–83. 23 4. Plaintiffs Retain Counsel 24 Plaintiffs subsequently sought and retained counsel. TAC ¶ 90. In a July 6, 2023 25 letter, Plaintiffs’ counsel advised the County that the zoning ordinance placed a substantial 26 burden on Plaintiffs’ religious exercise by requiring them to obtain a Major Use Permit. 27 ECF No. 52-18. The letter set forth Plaintiffs’ intent to bring a federal lawsuit if the Parties 28 were “unable to come to an agreement on a Minor Use Permit.” Id. at 2. 1 On October 16, 2023, the County responded that the Valley Center Property’s “yurts 2 in their current condition present serious concerns related to fire safety, structural integrity, 3 and environmental hazards.” ECF No. 52-19 at 2. The County’s response further stated: 4 The future use of the property will need to match the permit for which 5 Dr. Chu and the Sumana Forest Refuge apply. If the planned use is fewer than 50 people meditating and exploring Buddhism, without 6 taking up residence in the yurts, the County would consider a minor use 7 permit, as it would for the arguably analogous use case of a small school. However, if transient habitation is to be a use, whether primary 8 or accessory, a major use permit is required to ensure the resulting 9 health, safety, and environmental concerns are adequately examined. 10 Id. at 2. Finally, the County cautioned Plaintiffs that “[r]egardless of the permit ultimately 11 applied for and obtained,” the Valley Center Property yurts had to “be brought into 12 conformance with the building code.” Id. Although the letter recognized that this could be 13 “impractical with the existing yurts,” it noted the County’s willingness to “explore options” 14 with Plaintiffs as to how to do so. Id. at 2–3. 15 On December 1, 2023, Plaintiffs’ counsel responded that Plaintiffs’ planned use of 16 the property would be for less than 50 persons and reasserted their position that Plaintiffs 17 should be permitted to apply for a Minor Use Permit and maintain the yurts on their 18 property. ECF No. 52-20 at 2–3. 19 5. Application for Initial Consultation 20 Thereafter, Plaintiffs filed an application for a meeting with the County, known as 21 an initial consultation. ECF No. 52-22 at 2. In a letter dated May 28, 2024, the County 22 informed Plaintiffs that it had reviewed Plaintiffs’ initial consultation application. ECF No. 23 52-21 at 2. Based on the project description submitted with Plaintiffs’ application, the 24 County’s Planning & Development Services Department concluded that Plaintiffs’ project 25 required a Major Use Permit. Id. at 3. The letter indicated that Plaintiffs could seek a second 26 opinion from the County’s Chief of Project Planning and Chief of Land Development. Id. 27 at 4. 28 /// 1 6. Termination of Power 2 In May 2024, Dr. Chu consented to an inspection of the Valley Center Property. 3 TAC ¶ 101. On May 29, 2024, Contreras, along with officials from the Fire Department, 4 the Department of Environmental Health and Quality, and other County agencies, 5 conducted the inspection. Id. ¶ 103. 6 Thereafter, on May 31, 2024, Dr. Chu received a Notice from the County’s 7 Department of Environmental Health and Quality Division indicating that graywater was 8 “being illegally discharged onto the ground” at the property. TAC ¶ 107; ECF No. 52-22 9 at 2. The Notice stated that at the time of the inspection, officials observed ten yurts and 10 several “accessory structures.” ECF No. 52-22 at 2. Most of the yurts had “electrical, gas 11 plumbing, and water plumbing.” Id. Wastewater discharge pipes “were observed from all 12 plumbed yurts” and portable restrooms “were also observed on property,” despite there 13 being “no approved means of wastewater treatment/disposal on the property.” Id. 14 On June 7, 2024, San Diego Gas & Electric (“SDG&E”) terminated power to the 15 Valley Center Property. TAC ¶ 112. In a letter received by Dr. Chu several days later, 16 SDG&E informed him it had received notification from the County that the “electrical and 17 gas services” at the Valley Center Property presented “an immediate hazard to life and 18 property” and that SDG&E could not reconnect power until authorized in writing to do so 19 by the County. TAC ¶ 118; ECF No. 52-24 at 2. 20 7. Post-Complaint Conduct 21 On June 6, 2025—more than ten months after Plaintiffs filed this action— 22 Defendants indicated that they needed to again inspect the Valley Center property. TAC ¶ 23 140. Plaintiffs proposed an on-site inspection pursuant to Federal Rule of Civil Procedure 24 34(a)(2). Id. ¶ 142. Rather than proceed through discovery, the County obtained an 25 inspection warrant from San Diego Superior Court, supported by an affidavit from 26 Contreras, “[t]o enter the property for the purpose of inspecting all unpermitted 27 construction, including, but not limited to, multiple unpermitted yurts with living spaces, 28 kitchens, bathrooms, electrical, and plumbling; attached decks; laundry rooms; 1 unpermitted storage structures, and other unpermitted structures on the premises.” TAC ¶ 2 145; ECF No. 52-31 at 2–3. Subsequently, on July 22, 2025, the County issued a “Notice 3 and Order to Repair Substandard Building and Abate Public Nuisance” identifying multiple 4 alleged code violations. ECF No. 52-32 at 2–9. 5 B. Procedural Background 6 On July 11, 2024, Plaintiffs filed the instant action against the County. ECF No. 1. 7 On July 12, 2024, Plaintiffs filed a motion for a temporary restraining order and 8 preliminary injunction. ECF No. 4. The Court held a hearing on Plaintiffs’ motion on July 9 18, 2024, and denied it without prejudice. ECF No. 8. 10 1. Plaintiffs’ First Amended Complaint 11 On September 9, 2024, Plaintiffs filed a First Amended Complaint (“FAC”). ECF 12 No. 15. The FAC asserted seven claims: (1) a Religious Land Use and Institutionalized 13 Persons Act (“RLUIPA”) substantial burden claim; (2) a RLUIPA equal terms claim; (3) a 14 RLUIPA nondiscrimination claim; (4) a claim for violation of the First Amendment right 15 to free exercise of religion; (5) a claim for violation of the First Amendment right to free 16 speech and assembly; (6) a claim for violation of due process under the First and Fourteenth 17 Amendment; and (7) a claim for violation of free exercise and freedom of association under 18 the California Constitution. FAC ¶¶ 111–186. 19 On September 30, 2024, the County filed a motion to dismiss Plaintiffs’ First 20 Amended Complaint. ECF No. 16. Plaintiffs filed an opposition and the County filed a 21 reply. ECF Nos. 19; 20. 22 On February 24, 2025, the Court granted in part and denied in part the County’s 23 motion. See ECF No. 21. Specifically, the Court denied the County’s motion to dismiss 24 Plaintiffs’ RLUIPA equal terms claim, to the extent Plaintiffs were asserting a facial 25 challenge to the County’s ordinances governing Major Use and Minor Use permits. Id. at 26 22. The Court granted the County’s motion to dismiss Plaintiffs’ RLUIPA claims in all 27 other respects. Id. Additionally, the Court granted the County’s motion to dismiss 28 Plaintiffs’ claims for violation of free exercise and free speech under the First Amendment 1 but denied the County’s motion to dismiss Plaintiffs’ due process claim. Id. at 23. Finally, 2 the Court granted the County’s motion to dismiss Plaintiffs’ claims for violations of the 3 California Constitution. Id. 4 2. Plaintiffs’ Second Amended Complaint 5 On March 10, 2025, Plaintiffs filed a Second Amended Complaint (“SAC”). ECF 6 No. 22. The SAC asserted the same seven claims asserted in Plaintiffs’ FAC. SAC ¶¶ 139– 7 253. On March 24, 2025, the County filed a motion to dismiss Plaintiffs’ SAC. ECF No. 8 23. Plaintiffs filed an opposition and the County filed a reply. ECF Nos. 26; 28. 9 On May 5, 2025, the Court granted the County’s motion. ECF No. 29. Specifically, 10 the Court dismissed Plaintiff’s RLUIPA claims (Claims 1-3) without leave to amend, with 11 the exception of Plaintiffs’ facial challenge to the County’s ordinance governing land use 12 permits in the A70 Zoning District. ECF No. 29 at 16. The Court further dismissed 13 Plaintiff’s claims for violation of the First Amendment right to free exercise (Claim 4) and 14 free speech and assembly (Claim 5), and for violation of free exercise and freedom of 15 association under the California Constitution (Claim 7), without leave to amend. ECF No. 16 29 at 17. 17 3. Defendants’ Amended Answer and Counterclaims/Plaintiffs’ Third 18 Amended Complaint 19 On September 11, 2025, Plaintiff filed a motion for leave to amend their SAC to add 20 a First Amendment retaliation claim. ECF No. 37. The Court granted Plaintiff’s motion as 21 unopposed. ECF No. 48. 22 The County filed an Amended Answer to Plaintiffs’ SAC on November 21, 2025. 23 ECF No. 51. The County further filed a Counterclaim against defendant Chu and a 24 crossclaim against cross-defendant Chiungwen Tsai for: (1) nuisance and (2) public 25 nuisance. Id. at 18–25. The Counterclaim/Cross-Claim alleges that the structures on the 26 Sumana property are “constructed or maintained in violation of California and County of 27 San Diego building, electrical, plumbing, and fire laws and because they are not safe for 28 human use or habitation.” Id. at 24. 1 On November 25, 2025, Plaintiffs filed a TAC, the operative pleading in this case. 2 ECF No. 52. The TAC asserts three claims: (1) a facial challenge under under RLUIPA’s 3 equal-terms provision of the County’s zoning ordinance; (2) a claim for violation of due 4 process under the First and Fourteenth Amendments; and (3) a First Amendment retaliation 5 claim. TAC ¶¶ 156–191. 6 On February 6, 2026, the County filed the instant Motion to Dismiss. ECF No. 63. 7 Plaintiffs filed a response and the County filed a reply. ECF Nos. 63; 64. 8 II. LEGAL STANDARD 9 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” 10 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to dismiss, a 11 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 12 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 13 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he non-conclusory ‘factual content,’ 14 and reasonable inferences from that content, must be plausibly suggestive of a claim 15 entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 16 The plausibility review is a “context-specific task that requires the reviewing court to draw 17 on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Pleading facts 18 “‘merely consistent with’ a defendant’s liability” falls short of a plausible entitlement to 19 relief. Id. at 678 (quoting Twombly, 550 U.S. at 557). “[W]here the well-pleaded facts do 20 not permit the court to infer more than the mere possibility of misconduct, the complaint 21 has alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal 22 quotation marks omitted). A court “accept[s] factual allegations in the complaint as true 23 and construe[s] the pleadings in the light most favorable to the nonmoving party.” 24 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the 25 other hand, a court is “not bound to accept as true a legal conclusion couched as a factual 26 allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). 27 /// 28 /// 1 III. ANALYSIS 2 A. Monell Liability (Claims 2 and 3) 3 The County moves to dismiss Plaintiff’s Fourteenth Amendment due process and 4 First Amendment retaliation claims (Claim 2 and 3), arguing that Plaintiff has not 5 adequately pleaded a basis for municipal liability under Monell. ECF No. 62-1 at 16–17. 6 The Court addresses this argument below. 7 1. Monell, Generally 8 “The Civil Rights Act codified in 42 U.S.C. § 1983 provides a cause of action 9 against state officials who deprive a plaintiff of [his] federal constitutional rights.” Sinclair 10 v. City of Seattle, 61 F.4th 674, 678 (9th Cir. 2023). “Section 1983 does not create any 11 substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by 12 governmental officials.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “To prove 13 a case under section 1983, the plaintiff must demonstrate that (1) the action occurred ‘under 14 color of state law’ and (2) the action resulted in the deprivation of a constitutional right or 15 federal statutory right.” Id. “The statute requires that there be an actual connection or link 16 between the actions of the defendants and the deprivation alleged to have been suffered by 17 plaintiff.” Est. of Van Tine by & through Van Tine v. Cnty. of San Diego, No. 25-CV-1403- 18 LL-BLM, 2026 WL 800561, at *3 (S.D. Cal. Mar. 23, 2026) (internal quotation marks 19 omitted). 20 Municipal entities “cannot be held liable under § 1983 on a respondeat superior 21 theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, a municipal 22 entity can be held liable only if a “policy or custom” of the municipality “inflicts the injury 23 that the government as an entity is responsible under § 1983.” Id. at 694. “In order to 24 establish liability for governmental entities under Monell, a plaintiff must prove ‘(1) that 25 the plaintiff possessed a constitutional right of which she was deprived; (2) that the 26 municipality had a policy; (3) that this policy amounts to deliberate indifference to the 27 plaintiff’s constitutional right; and (4) that the policy is the moving force behind the 28 constitutional violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) 1 (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). 2 “A plaintiff can satisfy Monell’s policy requirement in one of three ways.” Gordon 3 v. Cty. of Orange, 6 F.4th 961, 973 (9th Cir. 2021). “First, a local government may be held 4 liable when it acts pursuant to an expressly adopted official policy.” Id. (internal quotation 5 marks omitted). “Second, a public entity may be held liable for a longstanding practice or 6 custom.” Id. (internal quotation marks omitted). “Third, a local government may be held 7 liable under [Section] 1983 when the individual who committed the constitutional tort was 8 an official with final policy-making authority or such an official ratified a subordinate’s 9 unconstitutional decision or action and the basis for it.” Id. at 974 (internal quotation marks 10 omitted). 11 2. Retaliation (Claim 3) 12 In Claim 3 of the TAC, Plaintiffs allege Defendants retaliated against them after 13 portions of their claims in this case survived two motions to dismiss. TAC ¶¶ 183–91. 14 Specifically, Plaintiffs allege Defendants “undertook retaliatory code enforcement 15 actions,” including: (1) “[i]nitiating new enforcement proceedings”; (2) issuing fines and 16 penalties; (3) “[e]xpanding the scope or intensity of prior enforcement”; and (4) 17 “[o]therwise seeking to burden or punish Plaintiffs’ use of the Property for religious 18 purposes.” Id. ¶ 186. 19 The County moves to dismiss Claim 3, arguing that Plaintiffs have not pleaded facts 20 sufficient to establish liability under Monell. ECF No. 62-1 at 16–17. Plaintiffs respond 21 that the TAC sufficiently states a retaliation claim against the County because it alleges 22 that the County, “through its authorized officials, initiated inspection and state enforcement 23 proceedings” against Plaintiffs. ECF No. 63 at 18. According to Plaintiffs, these 24 proceedings constituted “institutional enforcement decisions rather than isolated employee 25 misconduct.” Id. But that argument does not, by itself, identify a cognizable theory of 26 Monell liability. Plaintiffs do not point to any factual allegations in the TAC identifying 27 any express County policy or longstanding practice or custom that caused the alleged 28 constitutional violation; at most, they describe the enforcement actions taken against them. 1 And to the extent Plaintiffs intend to proceed on a final-policymaker or ratification theory, 2 the TAC does not identify the relevant official, allege that the official possessed final 3 policymaking authority for the County, or plead facts showing that such an official 4 approved the allegedly unconstitutional conduct. 5 Plaintiffs’ reliance on AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631 (9th 6 Cir. 2012) is misplaced. see ECF No. 63 at 19 (“At the pleading stage, Plaintiffs need only 7 plausibly allege that the deprivation flowed from an authorized County decision[.]”). 8 Plaintiffs appear to cite AE for the proposition that a plaintiff asserting municipal liability 9 need allege “no more than a bare allegation that government officials’ conduct conformed 10 to some unidentified government policy or custom.” 666 F.3d at 637. But in that passage, 11 the Ninth Circuit was recounting its pre-Twombly and pre-Iqbal precedent. See id. at 636 12 (“In the past, our cases have not required parties to provide much detail at the pleading 13 stage regarding such a policy or custom.”) (emphasis added). 14 AE instead held that the following pleading standard governs Monell claims: 15 First, to be entitled to the presumption of truth, allegations in a 16 complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying 17 facts to give fair notice and to enable the opposing party to defend itself 18 effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to 19 require the opposing party to be subjected to the expense of discovery 20 and continued litigation. 21 Id. at 637 (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). AE therefore does 22 not support the bare-allegation standard on which Plaintiffs rely. 23 In sum, Plaintiffs’ conclusory characterization of the County’s actions in their 24 briefing as “institutional enforcement decisions” is insufficient to state a Monell claim. See 25 Capp v. Cty. of San Diego, 940 F.3d 1046, 1061 (9th Cir. 2019) (dismissing Monell claim 26 in part where pleading ascribed “Defendants’ alleged misconduct to official policy in a 27 conclusory fashion that is insufficient to state a viable claim”); Hart v. Cnty. of Mendocino, 28 No. 25-CV-04501-RFL, 2026 WL 986261, at *5 (N.D. Cal. Apr. 13, 2026) (dismissing 1 Monell claim where complaint contained “only conclusory allegations that these 2 defendants acted pursuant to any municipal policy or custom.”); Milner v. Dodd, No. 25- 3 CV-03350-JSC, 2026 WL 555494, at *8 (N.D. Cal. Feb. 27, 2026) (dismissing Monell 4 claim holding allegation the violation of plaintiff’s constitutional rights “were caused by 5 municipal policies, customs, and deliberate indifference” were “conclusory and therefore 6 insufficient”); Segura v. City of La Mesa, 647 F. Supp. 3d 926, 939 (S.D. Cal. 2022) 7 (holding allegation that County by its “actions or inactions, authorized and/or ratified” the 8 alleged unconstitutional action was “simply too conclusory”); Barbosa by & through Co- 9 successors in Int. v. Shasta Cnty., No. 220CV02298JAMDMC, 2021 WL 1634446, at *4 10 (E.D. Cal. Apr. 27, 2021) (“[B]ecause Plaintiffs have only alleged unsupported conclusory 11 statements, they have not plausibly stated a Monell claim under any of the three theories 12 they advance: unconstitutional customs, policies, and practices, failure to train, and 13 ratification.”). 14 For these reasons, the Court GRANTS Plaintiff’s motion to dismiss Claim 3 against 15 the County WITH LEAVE TO AMEND.2 16 3. Due Process (Claim 2) 17 In Claim 2 of the TAC, Plaintiffs allege that the County violated their due process 18 rights under the Fourteenth Amendment by ordering the termination of electricity at the 19 Valley Center Property without first providing Plaintiffs notice or an opportunity to be 20 heard. TAC ¶¶ 177.3 21 22 23 2 Although Plaintiffs have not adequately pleaded Monell liability as to Claim 3, the Court is not convinced that amendment would be futile. Knappenberger v. City of Phoenix., 24 566 F.3d 936, 942 (9th Cir. 2009) (“Leave to amend should be granted unless the district 25 court determines that the pleading could not possibly be cured by the allegation of other facts.”) (internal quotation marks omitted). 26 3 Although Plaintiffs’ section heading states that their due process claim arises under 27 both the First and Fourteenth Amendments, the First Amendment’s protection against retaliation and the Fourteenth Amendment’s guarantee of due process “are two separate 28 1 The County moves to dismiss Claim 2, arguing that Plaintiffs have not pleaded a 2 sufficient basis for municipal liability under Monell. ECF No. 62-1 at 16–17. Plaintiffs 3 respond that the County’s Monell challenge to their due process claim is procedurally 4 barred because the County filed two prior motions to dismiss without raising this argument. 5 ECF No. 63 at 17–18. The Court agrees. 6 Here, the County does not dispute it could have raised its Monell challenge to 7 Plaintiffs’ due process claim in its prior motions to dismiss. Under Federal Rule of Civil 8 Procedure 12(g)(2), a “party that makes a motion under [Rule 12] must not make another 9 motion under this rule raising a defense or objection that was available to the party but 10 omitted from its earlier motion.” Consequently, “[t]he failure to challenge a particular 11 cause of action in a prior 12(b)(6) motion precludes such a challenge in a subsequent 12 12(b)(6) motion.” Rutherford v. Palo Verde Healthcare Dist., No. 13 LACV1301247JAKSPX, 2014 WL 12631845, at *10 (C.D. Cal. May 20, 2014); see Fair 14 v. King Cnty., No. 2:21-CV-01706-JHC, 2024 WL 4476616, at *7 (W.D. Wash. Oct. 11, 15 2024) (declining to consider challenge to Monell claim that could have been raised in a 16 prior motion to dismiss); Thuraissigiam v. United States Dep’t of Homeland Sec., No. 3:18- 17 cv-135-L-AGS, 2018 U.S. Dist. LEXIS 32923, at *2 (S.D. Cal. Feb. 27, 2018) (“Rule 18 12(g)(2) precludes piecemeal briefing of Rule 12(b) motions to dismiss.”). The County’s 19 response—that it may raise the argument now because Plaintiffs added Contreras as a 20 defendant—is not persuasive. ECF No. 64 at 5. The County cites no authority allowing it 21 to use the addition of another defendant to revive an available Monell argument that it 22 failed to raise earlier. See id. 23 Even assuming the County’s Monell challenge were timely, it would still fail. See 24 Hamman v. Cava Grp., Inc., No. 22-CV-593-MMA (MSB), 2023 WL 8374747, at *2 (S.D. 25 26 27 rights.” Sampson v. County of Los Angeles, 974 F.3d 1012, 1022 (9th Cir. 2020). The due process claim therefore appears more properly brought under the Fourteenth Amendment. 28 1 Cal. Dec. 4, 2023 (“While Rule 12(g)(2) technically prohibits successive motions to 2 dismiss that raise arguments that could have been made in a prior motion, courts faced with 3 a successive motion often exercise their discretion to consider the new arguments in the 4 interests of judicial economy.”) (internal quotation marks omitted); see also, e.g., Pepper 5 v. Apple Inc. (In re Apple iPhone Antitrust Litig.), 846 F.3d 313, 319 (9th Cir. 2017) (“[W]e 6 conclude that, as a reviewing court, we should generally be forgiving of a district court’s 7 ruling on the merits of a late-filed Rule 12(b)(6) motion.”); Thuraissigiam, 2018 U.S. Dist. 8 LEXIS 32923, at *2 (“[T]he court may exercise its discretion to grant relief from Rule 9 12(g)(2).”). 10 Plaintiff’s TAC identifies an express County policy—County Construction and Fire 11 Code 91.1.112.3—that appears to form the basis for their claim. TAC ¶ 121. The County 12 itself previously identified section 91.1.112.3 as the official policy governing the 13 challenged disconnection and maintained that its conduct was constitutional because it 14 complied with that policy. ECF Nos. 16 at 23; 21 at 19. 15 County Construction and Fire Code section 91.1.112.3(a) permits a building official 16 to disconnect utility service without prior notice “in case of emergency” after determining 17 doing so “is necessary to eliminate an immediate hazard to life or property.” ECF No. 52- 18 26 at 2. County Construction and Fire Code Section 91.1.112.3(d), in turn, provides that: 19 [T]he building official shall notify the serving utility and wherever 20 possible the owner and occupant of the building, structure or service system of the decision to disconnect prior to taking this action. If not 21 notified prior to disconnecting, the owner or occupant of the building, 22 structure or service system shall be notified in writing, as soon as practicable thereafter. 23 24 Id. 25 Plaintiffs allege that the County terminated electrical service pursuant to this policy 26 without first notifying them, allowing them to be heard regarding the condition purportedly 27 warranting termination, or giving them an opportunity to cure that condition. TAC ¶¶ 177– 28 78. These allegations are sufficient at the pleading stage to allege a procedural due process 1 violation based on an express County policy. See Reed v. City of Emeryville, 568 F. Supp. 2 3d 1029, 1039 (N.D. Cal. 2021) (denying motion to dismiss Monell claim where Plaintiff 3 adequately asserted injuries stemmed from implementation of an express policy); Johnson 4 v. Shasta Cty., 83 F. Supp. 3d 918, 931 (E.D. Cal. 2015) (same). 5 B. Brandy Contreras, Official Capacity 6 Because the Court has dismissed Plaintiffs’ retaliation claim against the County for 7 lack of Monell liability, the Court’s remaining inquiry as to Claim 3 is limited to whether 8 Plaintiffs have stated a viable retaliation claim against defendant Brandy Contreras in her 9 official capacity. The County argues that Plaintiffs’ claim against Contreras should be 10 dismissed because the official-capacity claim is duplicative of Plaintiffs’ claim against the 11 County. ECF No. 62-1 at 17–18. The Court agrees. 12 “[O]fficial-capacity suits generally represent only another way of pleading an action 13 against an entity of which an officer is an agent.” Hafer v. Melo, 502 U.S. 21, 25 (1991) 14 (internal quotation marks omitted). “Suits against state officials in their official capacity 15 therefore should be treated as suits against the State.” Id.; Will v. Mich. Dep’t of State 16 Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official 17 capacity is not a suit against the official but rather is a suit against the official’s office. As 18 such, it is no different from a suit against the State itself.”) (internal citation omitted); 19 Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (“There is no longer a need to bring 20 official-capacity actions against local government officials, for under Monell, [] local 21 government units can be sued directly for damages and injunctive or declaratory relief.”). 22 For these reasons, “[i]f an individual is sued in his official capacity as a municipal official 23 and the municipal entity is also sued, the claims against the individuals are duplicative and 24 should be dismissed.” Pyle v. Cheif Justin Gibbs, No. 2:24-CV-02940-TLN-CSK (PS), 25 2026 WL 1298134, at *6 (E.D. Cal. May 12, 2026). 26 Plaintiffs contend that retaining Contreras in her official capacity is necessary to 27 ensure “complete relief” and to provide “clarity regarding the source of governmental 28 authority.” ECF No. 63 at 20. But retaining Contreras does not add any meaningful clarity: 1 the County is already a named defendant and Plaintiffs identify no form of relief that could 2 be obtained from Contreras in her official capacity that could not be sought against the 3 County. 4 Accordingly, because Plaintiffs’ official-capacity claim against Contreras is 5 duplicative of their claim against the County, Claim 3 is DISMISSED as to Contreras in 6 her official capacity WITHOUT LEAVE TO AMEND. See e.g., Ctr. for Bio-Ethical 7 Reform, Inc. v. L.A. Cty. Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008) (“When both a 8 municipal officer and a local government entity are named, and the officer is named only 9 in an official capacity, the court may dismiss the officer as a redundant defendant.”); Est. 10 of Bonilla v. Cnty. of Merced, No. 118CV00329DADSKO, 2019 WL 1405551, at *5 (E.D. 11 Cal. Mar. 28, 2019) (dismissing official capacity suit as “duplicative of 12 plaintiffs’ Monell claim against the County”); Neuroth v. Mendocino Cnty., No. 15-CV- 13 03226-NJV, 2016 WL 379806, at *6 (N.D. Cal. Jan. 29, 2016) (“[W]hen individuals are 14 being sued in their official capacity as municipal officials and the municipal entity itself is 15 also being sued, then the claims against the individuals are duplicative and should be 16 dismissed.”) (internal quotation marks omitted); Luke v. Abbott, 954 F. Supp. 202, 203 17 (C.D. Cal. 1997) (“[W]hen both an officer and the local government entity are named in a 18 lawsuit and the officer is named in official capacity only, the officer is a redundant 19 defendant and may be dismissed.”).4 20 /// 21 /// 22 /// 23 /// 24 25 26 4 Because the Court dismisses Claim 3 against the County for failure to plead Monell 27 liability and against Contreras in her official capacity as duplicative of the claim against the County, the Court declines to reach Defendants’ alternative grounds for dismissal at 28 1 CONCLUSION 2 For the above reasons, the Court GRANTS IN PART and DENIES IN PART 3 || Defendants’ motion to dismiss as follows: 4 l. The Court DENIES Defendants’ motion to dismiss Claim 2 against the 5 || County. 6 2. The Court GRANTS Defendants’ motion to dismiss Claim 3 against the 7 ||County WITHOUT PREJUDICE. 8 3. The Court GRANTS Defendants’ motion to dismiss Claim 3 against 9 || defendant Contreras in her official capacity WITH PREJUDICE. To the extent Plaintiffs 10 assert any other claims against Contreras in her official capacity, those claims are likewise 11 |} DISMISSED WITH PREJUDICE. 12 If Plaintiffs chooses to file a Fourth Amended Complaint, Plaintiff must do so 13 || within fourteen (14) days of the date of this Order. Defendants’ time to respond to the 14 |/operative pleading will begin to run on the earlier of the date Plaintiffs file a Fourth 15 |} Amended Complaint or fourteen (14) days from the date of this Order. 16 IT IS SO ORDERED. 17 || Dated: June 24, 2026 □ 19 Hon. Robert S. Huie United States District Judge 20 21 22 23 24 25 26 27 28