Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ALBERTS, Case No.: 25-cv-2908-RSH-SBC 12 Plaintiff, ORDER GRANTING KTS 13 v. DEFENDANTS’ MOTION TO DISMISS AND DENYING BRIDGE 14 BRIDGE HOUSING CORPORATION, et HOUSING’S MOTION TO DISMISS al., 15 Defendants. [ECF Nos. 33, 34, 42] 16 17 18 Pending before the Court are motions to dismiss Plaintiff’s Second Amended 19 Complaint, filed by defendants Kimball, Tirey & St. John LLP, Natalie D. Contreras, 20 Raymund M. Quicho (collectively the “KTS Defendants”), and defendant Bridge Housing 21 Corporation (“Bridge Housing”). ECF Nos. 33, 34. As set forth below, the KTS 22 Defendants’ motion is granted, and Bridge Housing’s motion is denied. 23 I. BACKGROUND 24 A. Factual Background 25 Plaintiff is a tenant at Celadon, a residential property in San Diego owned by Bridge 26 Housing, where he receives federally funded low-income housing assistance from the U.S. 27 Department of Housing and Urban Development’s (“HUD’s”) Choice Voucher Program. 28 Plaintiff’s claims arise from his tenancy at Celadon. ECF No. 32 ¶ 17. 1 The Second Amended Complaint names four defendants: Bridge Housing, the law 2 firm Kimball, Tirey & St. John LLP (“KTS”), and its attorneys, Natalie D. Contreras and 3 Raymund M. Quicho. Id. ¶¶ 11-14. 4 The pro se Second Amended Complaint alleges as follows. Beginning in 2025, 5 Defendants engaged in unlawful conduct by retaliating, discriminating, and harassing 6 Plaintiff because he was engaged in activities that are protected by federal and state law. 7 Id. ¶¶ 18-57. On June 3, 2025, Plaintiff published a tenants’ union Facebook page and 8 notified Defendants about the page. Id. ¶ 20. On June 9, 2025, Plaintiff submitted a request 9 for disability-related accommodations to Bridge Housing due to his “physical, 10 neurodevelopmental, and depressive/anxiety disabilities” that limit “one or more major life 11 activities.” Id. ¶¶ 16, 21, 67. The following day, Plaintiff received a letter from Contreras, 12 which referenced “Plaintiff’s online postings concerning [] management and residents.” Id. 13 ¶ 64. On June 12, 2025, Plaintiff published a tenants’ union website and Defendants were 14 aware of this action. Id. ¶¶ 22, 58. Later that same day, Defendants served Plaintiff with a 15 “Notice to Permanently Perform Covenant or Quit,” purporting to inform him that he 16 breached his lease agreement and to give him an opportunity to correct the violation. Id. ¶¶ 17 32, 35. 18 On June 16, 2025, Plaintiff filed a housing discrimination complaint with HUD and 19 the California Department of Fair Employment and Housing, and notified Defendants. Id. 20 ¶¶ 23, 66, 71. Later that same day, Defendants served Plaintiff with a second notice to quit 21 that corrected deficiencies that Plaintiff had raised regarding the first notice. Id. ¶ 71. Both 22 notices were signed by Quicho. Id. ¶¶ 31-36. Defendants never filed an unlawful detainer 23 action against Plaintiff. Id. ¶ 30. 24 B. Procedural History 25 On October 28, 2025, Plaintiff filed his Complaint in this action along with a motion 26 to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. The Court granted Plaintiff leave to 27 proceed IFP, and directed the U.S. Marshals Service to effectuate service of process. ECF 28 No. 3. On December 3, 2025, Plaintiff filed an Amended Complaint. ECF No. 8. In January 1 2026, the KTS Defendants, along with defendants Bridge Housing and Jennifer Ramirez 2 (collectively the “Bridge Defendants”), filed motions to dismiss. ECF Nos. 13, 21. 3 Subsequently, on April 9, 2026, the Court granted the KTS Defendants’ motion to dismiss 4 and granted in part and denied in part the Bridge Defendants’ motion to dismiss. ECF No. 5 31. The Court dismissed all claims in the Amended Complaint with the exception of 6 Plaintiff’s Fair Employment Housing Act (“FEHA”) retaliation claim against Bridge 7 Housing. Id. at 14-15. The Court granted Plaintiff leave to amend the claims that the Court 8 dismissed. Id. at 13-14. Thereafter, on April 13, 2026, Plaintiff filed a Second Amended 9 Complaint. ECF No. 32. 10 The Second Amended Complaint brings the following claims, as numbered therein, 11 against all Defendants unless otherwise noted: (1) retaliation, pursuant to FEHA (against 12 Bridge Housing only); (2) retaliation, pursuant to the Fair Housing Act (“FHA”), 42 U.S.C. 13 § 3617; (3) interference, coercion, and intimidation, in violation of 24 C.F.R. § 100.400; 14 (4) retaliation, pursuant to Cal. Civ. Code § 1942.5 (against Bridge Housing only). ECF 15 No. 32 ¶¶ 88-134. 16 On April 27, 2026, the KTS Defendants filed a motion to dismiss. ECF No. 33. On 17 April 30, 2026, Bridge Housing filed its motion to dismiss. ECF No. 34. The motions are 18 fully briefed. ECF Nos. 37 (opp. to KTS Defendants MTD), 38 (reply from KTS 19 Defendants); 36 (opp. to Bridge Housing MTD), 39 (reply from Bridge Housing). On May 20 26, 2026, Plaintiff filed a motion for leave to file a sur-reply, and the KTS Defendants and 21 Bridge Housing filed their oppositions to that motion. ECF Nos. 42, 43, 44. 22 II. LEGAL STANDARD 23 Defendants move to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. A 24 motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. 25 Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain 26 statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 27 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is 28 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Fed. R. 1 Civ. P. 12(b)(6). The plausibility standard demands more than a “formulaic recitation of 2 the elements of a cause of action,” or “‘naked assertions’ devoid of ‘further factual 3 enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. 4 at 555, 557). Instead, a complaint “must contain sufficient allegations of underlying facts 5 to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. 6 Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 7 When reviewing a motion to dismiss under Rule 12(b)(6), courts assume the truth of 8 all factual allegations and construe them in the light most favorable to the nonmoving 9 party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996) (citing Nat’l 10 Wildlife Fed’n v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995)). But a court “disregard[s] 11 ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 12 statements[.]’” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) 13 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009)). Likewise, “conclusory 14 allegations of law and unwarranted inferences are not sufficient to defeat 15 a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998) (citing In re 16 Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996)). “After eliminating such 17 unsupported legal conclusions, [courts] identify ‘well-pleaded factual allegations,’ which 18 [are] assume[d] to be true, ‘and then [courts] determine whether they plausibly give rise to 19 an entitlement to relief.’” Telesaurus VPC, 623 F.3d at 1003. Dismissal under Rule 20 12(b)(6) is proper where there is no cognizable legal theory to support the claim or when 21 there is an absence of sufficient factual allegations to support a facially plausible claim for 22 relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). 23 III. ANALYSIS 24 A. Noerr-Pennington Doctrine 25 The KTS Defendants argue that Plaintiff’s claim two and three are barred by the 26 Noerr-Pennington doctrine because it “provides broad immunity to attorneys engaging in 27 conduct incidental to litigation.” ECF No. 33-1 at 13. The KTS Defendants contend that 28 Plaintiff’s second and third claim are based on conduct incidental to litigation: specifically, 1 a letter from defendant Contreras alleging violations of the lease agreement, and two 2 notices to quit. Id. The KTS Defendants argue that “the only allegations against the 3 Defendants relate to their communications as attorneys with Plaintiff.” Id. 4 In response, Plaintiff argues that Noerr-Pennington does not “extend to all 5 prelitigation conduct or to actions untethered from a genuine effort to invoke judicial 6 process.” ECF No. 37 at 15. Plaintiff further contends that the KTS Defendants have taken 7 inconsistent positions: in invoking the litigation privilege, they characterize the notices to 8 quit as “mechanisms intended to allow cure and avoid litigation,” while at the same time 9 invoking Noerr-Pennington and characterizing the notices as “activity in furtherance of 10 litigation.” Id. at 14. Finally, Plaintiff further argues that whether Defendants’ conduct 11 constitutes protected activity under the Noerr-Pennington doctrine constitutes a question 12 of fact, which is “not suitable for resolution on a motion to dismiss.” Id. at 15. 13 “The Noerr-Pennington doctrine derives from the First Amendment’s guarantee of 14 ‘the right of the people . . . to petition the Government for a redress of grievances.’” Sosa 15 v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006) (quoting U.S. Const. amend. I). 16 “Although the doctrine was developed in the antitrust context, it has since been extended 17 to other statutory schemes.” Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd., 711 F.3d 18 1136, 1139 (9th Cir. 2013) (internal citations omitted). Under the Noerr-Pennington 19 doctrine, “those who petition any department of the government for redress are generally 20 immune from statutory liability for their petitioning conduct.” Sosa, 437 F.3d at 929 (citing 21 Empress LLC v. City & Cnty. of S.F., 419 F.3d 1052, 1056 (9th Cir. 2005)). The doctrine 22 extends to claims arising out of a litigant’s petitioning activity. See Freeman v. Lasky, Haas 23 & Cohler, 410 F.3d 1180, 1183–84 (9th Cir. 2005) (the Noerr-Pennington doctrine applies 24 to “[a] complaint, an answer, a counterclaim and other assorted documents and pleadings, 25 in which plaintiffs or defendants make representations and present arguments to support 26 their request that the court do or not do something”). In addition, “[c]onduct incidental to 27 a lawsuit, including a pre-suit demand letter, [also] falls within the protection of the Noerr- 28 1 Pennington doctrine.” Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1007 2 (9th Cir. 2008) (citing Sosa, 437 F.3d at 936–38). 3 However, “[n]ot all petitioning activity is immunized[.]” Kearney v. Foley & 4 Lardner, LLP, 590 F.3d 638, 644 (9th Cir. 2009). “[N]either the Petition Clause nor the 5 Noerr-Pennington doctrine protects sham petitions[.]” Sosa, 437 F.3d at 932. The sham 6 exception to Noerr-Pennington does not apply when a litigant “was genuinely seeking 7 governmental action.” Oregon Nat. Res. Council v. Mohla, 944 F.2d 531, 535 (9th Cir. 8 1991) (citing Franchise Realty Interstate Corp. v. San Francisco Local Joint Exec. Bd. of 9 Culinary Workers, 542 F.2d 1076, 1081 (9th Cir. 1976)). The Ninth Circuit has identified 10 “three circumstances in which the sham exception might apply” in the litigation context: 11 [F]irst, where the lawsuit is objectively baseless and the defendant’s motive in bringing it was unlawful; second, where the conduct involves 12 a series of lawsuits brought pursuant to a policy of starting legal 13 proceedings without regard to the merits and for an unlawful purpose; and third, if the allegedly unlawful conduct consists of making 14 intentional misrepresentations to the court, litigation can be deemed a 15 sham if a party’s knowing fraud upon, or its intentional misrepresentations to, the court deprive the litigation of its legitimacy. 16 17 Sosa, 437 F.3d at 938 (internal quotation marks and citations omitted). Litigation is 18 objectively baseless if “no reasonable litigant could realistically expect success on the 19 merits.” Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 20 (1993). 21 The Court first determines whether Plaintiff’s second and third claims arise from 22 petitioning activity or conduct incidental to it. Defendants argue that the letter and notices 23 to quit constitute conduct incidental to filing a lawsuit. ECF No. 33-1 at 12-13. The Court 24 agrees. Plaintiff’s second and third claims are based entirely on prelitigation 25 communication sent by attorneys representing defendant Bridge Housing. The Noerr- 26 Pennington doctrine provides immunity to prelitigation communications and conduct that 27 is “incidental to the prosecution of the suit.” Sosa, 437 F.3d at 935 (citation omitted) 28 (concluding that Noerr-Pennington immunized defendant’s prelitigation communication 1 where no lawsuit was filed). Plaintiff’s allegations relate to Defendants’ filing notices to 2 quit and correspondence that discussed potential enforcement action. Notices to quit are 3 required before filing an unlawful detainer action. See Cal. Civ. Proc. Code § 1161; Sosa, 4 437 F.3d at 935 (“[C]ommunications between private parties are sufficiently within the 5 protection of the Petition Clause to trigger the Noerr-Pennington doctrine, so long as they 6 are sufficiently related to petitioning activity.”). Moreover, the correspondence sent from 7 defendant Contreras was conduct incidental to petitioning activity because the 8 communications detailed alleged lease violations and discussed future legal action against 9 Plaintiff if the violations were not remedied. See Sosa, at 936 (“[P]receding the formal 10 filing of litigation with an invitation to engage in negotiations to settle legal claims is a 11 common, if not universal, feature of modern litigation . . . . Restricting such prelitigation 12 conduct when the same demands asserted in a petition to the court is protected would render 13 the entire litigation process more onerous, imposing a substantial burden on a party’s 14 ability to seek redress from the courts.”). These allegations concern Defendants’ actions 15 incidental to petitioning activity, bringing them within the scope of Noerr-Pennington. 16 Next, the Court considers whether the alleged petitioning activity falls within Noerr- 17 Pennington’s sham exception. Litigation related activity that is “objectively baseless” and 18 brought for an unlawful purpose is not protected by Noerr-Pennington. See Prof’l Real 19 Estate Inv’rs, Inc., 508 U.S. at 60–61. Litigation is objectively baseless if “no reasonable 20 litigant could realistically expect success on the merits.” Id. at 60. The party asserting the 21 sham exception must establish that the litigation is objectively baseless before the court 22 considers whether the petitioning activity was brought for an unlawful purpose. Id. at 57- 23 61 (holding that “an objectively reasonable effort to litigate cannot be sham regardless of 24 subjective intent”). 25 Here, Plaintiff failed to plead facts alleging that the KTS Defendants’ prelitigation 26 conduct was objectively baseless. Plaintiff alleges that Defendants’ conduct was 27 undertaken for an improper purpose, namely, unlawful discrimination and retaliation 28 against him for engaging in protected activity. ECF No. 32 ¶¶ 74-84. Plaintiff alleges that 1 both notices to quit contained numerous deficiencies that rendered them “legally 2 insufficient to support an unlawful detainer action.” Id. ¶ 76. Plaintiff further alleges that 3 the defective notices “coupled with [the] absence of any subsequent unlawful detainer 4 action” demonstrate that Defendants were using their prelitigation communication as “tools 5 of coercion and intimidation rather than as bona fide steps towards litigation.” Id. ¶ 107. 6 These allegations do not satisfy the requirement of plausibly alleging that the contemplated 7 unlawful detainer action was objectively baseless. See Carpenters Local Union 721 v. 8 Limon, No. CV 17-4426 DSF (MRWx), 2018 U.S. Dist. LEXIS 222460, at *4 (C.D. Cal. 9 Feb. 27, 2018) (concluding that the Noerr-Pennington sham exception does not apply 10 where counterclaimant failed to allege facts sufficient to show that the litigation activity is 11 objectively baseless); OG Int’l, Ltd. v. Ubisoft Ent., No. C 11-04980 CRB, 2012 WL 12 4809174, at *3 (N.D. Cal. Oct. 9, 2012) (concluding that defendants’ pre-suit demand 13 letters do not fall into the sham exception where plaintiff did not allege that claims in the 14 letter were objectively baseless). For these reasons, the Court concludes that Plaintiff has 15 failed to make sufficient allegations demonstrating that the sham litigation exception 16 applies. Accordingly, the Court dismisses Plaintiff’s second and third claims, and declines 17 to address Defendants’ remaining arguments as to these claims. 18 B. Litigation Privilege 19 Defendant Bridge Housing argues that Plaintiff’s claims one, two, and four are 20 barred by the litigation privilege, because the challenged conduct was taken in serious 21 contemplation of litigation. ECF No. 34 at 2-4. Specifically, Bridge Housing argues that 22 their issuance of a second notice to quit addressing the deficiencies of their first notice 23 indicates that litigation was seriously contemplated. Id. at 3. Bridge Housing contends that 24 after receiving the notices, Plaintiff cured the lease deficiencies; thus, there was “no need 25 for an unlawful detainer action.” Id. In response, Plaintiff argues that Defendant’s conduct 26 was used as a “retaliatory tool[] directed at Plaintiff’s tenancy.” ECF No. 36 at 7. Plaintiff 27 further argues that whether litigation was contemplated in good faith presents a factual 28 question that should not be resolved at the pleading stage. Id. 1 California’s litigation privilege applies to any communication “(1) made in judicial 2 or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) 3 to achieve the objects of the litigation; and (4) that ha[s] some connection or logical relation 4 to the action.” Graham-Sult v. Clainos, 756 F.3d 724, 741 (9th Cir. 2014) (quoting Mansell 5 v. Otto, 108 Cal. App. 4th 265, 280 (2003)). “The principal purpose of [California’s 6 litigation privilege] is to afford litigants and witnesses the utmost freedom of access to the 7 courts without fear of being harassed subsequently by derivative tort actions.” Silberg v. 8 Anderson, 50 Cal. 3d 205, 213 (1990) (internal citation omitted). A prelitigation 9 communication is protected by the litigation privilege only when it “relates to litigation 10 that is contemplated in good faith and under serious consideration.” Action Apartment 11 Assoc., Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1251 (2007) (citations omitted). The 12 litigation privilege is an affirmative defense, and Defendants bear the burden of proof to 13 show that it applies to their conduct. See Quigley v. Garden Valley Fire Prot. Dist., 7 Cal. 14 5th 798, 810 (2019) (determining that the litigation privilege is an affirmative defense); 15 Hinerfeld-Ward, Inc. v. Lipian, 188 Cal. App. 4th 86, 93 (Ct. App. 2010) (finding that a 16 defendant who “advances an affirmative defense to the plaintiff’s claims bears the burden 17 of proof on the defense”) (citation and quotation marks omitted). 18 Defendants’ arguments for dismissal related to the litigation privilege are similar to 19 the arguments that they raised in their previous motions to dismiss Plaintiff’s First 20 Amended Complaint. ECF Nos. 34 at 3-4; 33-1 at 10-11. Defendants again rely on two 21 cases, Bisno v. Douglas Emmett Realty Fund 1988, 174 Cal. App. 4th 1534 (Ct. App. 2009) 22 and Feldman v. 1100 Park Lane Assocs., 160 Cal. App. 4th 1467 (Ct. App. 2008) to support 23 the proposition that a notice to quit is protected by the litigation privilege even when an 24 unlawful detainer action is not filed. The Court previously concluded that the holdings in 25 Bisno and Feldman do not “stand[] for the proposition that a three-day notice is in all 26 circumstances protected by the litigation privilege; the inquiry is whether the notice ‘was 27 issued when a concomitant unlawful detainer action was contemplated in good faith.’” ECF 28 No. 31 at 7. Defendants’ motions to dismiss do not meaningfully acknowledge the Court’s 1 prior ruling, as they fail to identify additional legal authority that would lead to a different 2 result. 3 Furthermore, defendant Bridge Housing Corporation argues that the California 4 litigation privilege applies to “each retaliation cause of action[,]” including Plaintiff’s FHA 5 retaliation claim. ECF No. 34 at 2-3. The Court disagrees. In Religious Technology Center 6 v. Wollersheim, 971 F.2d 364, 365 (9th Cir. 1992), the Ninth Circuit rejected the 7 defendant’s argument that plaintiff’s federal copyright claim was barred by California’s 8 litigation privilege, holding that “in federal question cases, the law of privilege is governed 9 by the principles of the common law as they may be interpreted by the courts of the United 10 States in light of reason and experience. [The defendant] cites no cases, and we have found 11 none, indicating such a privilege has been recognized as a matter of federal common law.” 12 Id. at 367 n.10 (citation and internal quotation marks omitted); see also Amaretto Ranch 13 Breedables, LLC v. Ozimals, Inc., 790 F. Supp. 2d 1024, 1030 (N.D. Cal. 2011) (“Religious 14 Technology Center stands for the uncontroversial rule that California’s litigation privilege 15 does not apply to federal claims.”). The Court concludes that for this reason as well, the 16 California litigation privilege does not bar Plaintiff’s FHA claim. 17 Accordingly, the Court declines to dismiss claims one, two, or four based on the 18 litigation privilege. 19 C. Leave to Amend 20 “Rule 15(a) declares that leave to amend shall be freely given when justice so 21 requires[.]” Foman v. Davis, 371 U.S. 178, 182 (1962) (citation and internal quotation 22 marks omitted). At the same time, “a district court may dismiss without leave where a 23 plaintiff’s proposed amendments would fail to cure the pleading deficiencies and 24 amendment would be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 25 1041 (9th Cir. 2011) (citation omitted). “[T]he district court’s discretion to deny leave to 26 amend is particularly broad where plaintiff has previously amended the complaint.” 27 Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) 28 (quotations omitted). 1 Here, the Court is dismissing Plaintiff’s second and third claims for failure to 2 adequately plead facts supporting his argument that Defendants’ conduct falls within the 3 sham exception of Noerr-Pennington. This deficiency could possibly be cured by the 4 amendment of additional factual allegations that Defendants’ conduct was objectively 5 baseless. See B&G Foods N. Am., Inc. v. Embry, 638 F. Supp. 3d 1122, 1134 (E.D. Cal. 6 2022) (granting plaintiff leave to amend its complaint to include additional factual 7 allegations under the sham exception of the Noerr-Pennington doctrine); Wonderful Real 8 Est. Dev. LLC v. Laborers Int’ l Union of N. Am. Loc. 220, No. 119CV00416LJOSKO, 9 2020 WL 91998, at *11 (E.D. Cal. Jan. 8, 2020) (same). Accordingly, the Court grants 10 Plaintiff leave to file a second amended complaint for the sole purpose of addressing the 11 deficiencies as they relate to claims two and three. 12 IV. CONCLUSION 13 For the foregoing reasons, the KTS Defendants’ motion to dismiss [ECF No. 33] is 14 GRANTED. The Bridge Defendants’ motion to dismiss [ECF No. 34] is DENIED and the 15 Court DISMISSES claims two and three asserted in the SAC. 16 The Court GRANTS Plaintiff leave to file a third amended complaint, if Plaintiff 17 chooses to do so, within thirty (30) days of the date of this order and subject to the 18 limitations described above. The amended pleading must be complete in and of itself, 19 without reference to the Second Amended Complaint or any other pleading, attachment, or 20 document. If Plaintiff files a third amended complaint that exceeds the leave granted by 21 this order, the pleading will be stricken. 22 If Plaintiff does not file an amended pleading within the timeframe set forth above, 23 the Second Amended Complaint will remain the operative pleading as to claims one and 24 four only; all Defendants except Bridge Housing will be dismissed from the action; and 25 Bridge Housing’s responsive pleading will be due forty-five (45) days after the date of this 26 order. 27 /// 28 /// 1 Plaintiff's motion to file a sur-reply [ECF No. 42] is DENIED. 2 IT IS SO ORDERED. 3 || Dated: July 30, 2026 5 Hon. Robert S. Huie United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 20 Plaintiff's motion seeks to submit briefing in response to Defendants’ “arguments 21 substantially expanded and further developed in the Reply briefs[,]” addressing “litigation 99 privilege, Noerr-Pennington immunity, attorney participation in retaliatory conduct, causation severance, and the characterization of the challenged conduct as merely routine 23 || prelitigation communications.” ECF No. 42 at 2. Defendants oppose and contend that their reply briefs do not include any new arguments. ECF Nos. 43, 44. Plaintiff’s proposed sur- reply does not purport to address new arguments raised in Defendants’ reply briefs, but 25 ||instead includes additional factual material that was not included in the Second Amended 26 Complaint. This is not a valid basis for a sur-reply. See Banga v. First USA, NA, 29 F. Supp. 3d 1270, 1276 (N.D. Cal. 2014) (concluding that leave to file a sur-reply may be 27 || warranted when “a party raises a new argument or presents new evidence in a reply brief”). 28 Accordingly, Plaintiff's motion to submit additional briefing is denied.