Opinion
No. 2:18 cv-09933 AWT-AFM
12-30-2019
PASADENA REPUBLICAN CLUB, Plaintiff, v. WESTERN JUSTICE CENTER ; City of Pasadena, California ; and Judith Chirlin, Defendants.
Anthony T. Caso, Center for Constitutional Jurisprudence, Orange, CA, for Plaintiff. Debra Wong Yang, Gibson Dunn and Crutcher, Los Angeles, CA, Carol Ann Humiston, Dawn Cushman, Jonathan A. Ross, Bradley and Gmelich LLP, Glendale, CA, for Defendants.
Anthony T. Caso, Center for Constitutional Jurisprudence, Orange, CA, for Plaintiff.
Debra Wong Yang, Gibson Dunn and Crutcher, Los Angeles, CA, Carol Ann Humiston, Dawn Cushman, Jonathan A. Ross, Bradley and Gmelich LLP, Glendale, CA, for Defendants.
ORDER RE MOTIONS: (1) TO DISMISS [26]; and (2) FOR SUMMARY JUDGMENT [27]
A. WALLACE TASHIMA, United States Circuit Judge The Pasadena Republican Club alleges that the Western Justice Center, a private nonprofit organization, discriminates on the basis of political and religious viewpoint in the rental of event space to outside groups, in violation of the First Amendment. The Club has sued the Center, the Center's former executive director, and the City of Pasadena, which owns the property and leases it to the Center, under 42 U.S.C. § 1983. It has also asserted an additional claim against Judith Chirlin, the former executive director of the Center, under 42 U.S.C. § 1985(3). The Center and Chirlin have moved to dismiss the first amended complaint under Fed. R. Civ. P. 12(b)(6). ECF 26. The City has moved for summary judgment under Fed. R. Civ. P. 56. ECF 27.
The court will grant the Center's and Chirlin's motion to dismiss because the complaint does not plausibly allege that the Center and Chirlin were acting under color of state law, as § 1983 requires, or that the City was involved in the alleged conspiracy, as § 1985(3) requires. Although a symbiotic relationship existed to some degree between the Center and the City, this case is distinguishable from Burton v. Wilmington Parking Authority , 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), upon which the Club relies, because, among other things, the property was not partly maintained by the City, the City did not knowingly accept the benefits of the alleged discrimination and the Center's involvement was not indispensable to the City's financial success. Under the facts and circumstances alleged here, the City has not "so far insinuated itself into a position of interdependence with [the Center] that it must be recognized as a joint participant in the challenged activity." Id. at 725, 81 S.Ct. 856.
The court also will grant the City's motion for summary judgment, because the record does not support the conclusion that the alleged constitutional violations were caused by a City policy or custom, as required to establish municipal liability under § 1983. See Monell v. Dep't of Soc. Servs. of City of N.Y. , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The policies at issue here regarding the rental of the Center's premises to outside groups were those of the Center, not those of the City. Although the Club contends that the City delegated final policymaking authority to the Center, the record shows only that the City, by lease, conveyed a property interest to the Center, not that it delegated City policymaking authority to the Center.
BACKGROUND
Plaintiff Pasadena Republican Club ("Club") is a voluntary membership organization that supports the election of Republican candidates to local, state, and national office. First Amended Complaint ("complaint" or "FAC") ¶ 4. Defendant Western Justice Center ("Center") is a § 501(c)(3) nonprofit corporation. FAC ¶ 6. Defendant Judith Chirlin was the executive director of the Center at the time of the events at issue in this action. FAC ¶ 7. Defendant City of Pasadena ("City") is a city in the State of California. FAC ¶ 5.
In 1989, the Center agreed to lease certain real property, commonly known as 55-85 South Grand Avenue, Pasadena, from the Pasadena Surplus Property Authority, a public corporation formed by the City pursuant to state law. FAC ¶¶ 8-9. Among the buildings included in the lease is the historic Maxwell House, located at 55 South Grand Avenue. FAC ¶ 8; Lease Agreement ¶ 6.1.
The lease states:
Landlord is entering into this Lease as a means of benefiting the citizens of the city of Pasadena (the "City") and its environs through a center for the study of dispute resolution and the administration of justice, to provide additional employment and revenues to the local economy, to provide for improvements in both the local, regional, national, and international components of the legal system, and to provide a forum for educational research. Landlord is also entering into this Lease for the purpose of insuring the restoration and historic preservation of the Premises. A detailed copy of Landlord's goals is attached in the Plan of Public Use for Surplus Property attached hereto as Exhibit B. Tenant is entering into this Lease, rather than directly purchasing the Premises, because the Tenant does not qualify as an organization eligible to purchase the Premises [from the federal government]. It is the intent that neither Landlord nor the City of Pasadena shall be required to contribute general funds to the acquisition, restoration or renovation of the Premises ....
Lease Agreement ¶ 1.2; FAC ¶ 10.
The complaint incorporates the lease agreement by reference. See United States v. Corinthian Colls. , 655 F.3d 984, 999 (9th Cir. 2011) ("As a general rule, we may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. We may, however, consider ... unattached evidence on which the complaint necessarily relies if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the document." (citations and internal quotation marks omitted)).
The lease is for an initial term of 55 years and grants the Center an option to extend the lease for an additional 44 years. FAC ¶ 8; Lease Agreement ¶¶ 2.1, 2.3. It requires the Center to cover all costs related to the acquisition, improvement, repair and maintenance of the premises, and it specifically states that the landlord – initially the Pasadena Surplus Property Authority, and later the City – shall "have no obligation, in any manner whatsoever, to repair and maintain the Premises nor the buildings located thereon nor the equipment therein, whether structural or non-structural." Lease Agreement ¶¶ 1.2, 3.1-3.2, 5.3.1, 6, 7.1, 7.3; Duyshart decl. ¶ 8. The lease expressly prohibits the Center from discriminating against "any employee or applicant for employment ... because of race, color, religion, sex, physical handicap, or national origin," and it requires the Center to "establish and carry out an Affirmative Action Plan for equal employment opportunity and affirmative action in contracting." Lease Agreement ¶¶ 31-32.
The provision of the lease governing the Center's use of the premises states that:
The Premises shall be used and occupied by Tenant and its sublessees only for the purposes described in the Plan of Public Use for Surplus Property, including but not limited to the following non-profit law related functions: (i) operation of a center for the study of the following matters: alternative dispute resolution, administration of justice, delivery of legal services, and other legally oriented issues; (ii) providing space to non-profit entities for legal seminars, meetings, conferences, hearing rooms, deposition rooms, arbitration rooms, law library, research space; (iii) residential and office facilities for legal researchers and scholars and ancillary services such as dining
facilities; and (iv) for subleasing portions of the Premises to tax exempt organizations providing law related services, and for no other purposes whatsoever. Tenant is expressly prohibited from leasing the Premises or any portion thereof to lawyers offering legal services for profit or allowing the Premises or any portion thereof to be used for any for profit activities. Tenant shall continuously during the term of this Lease following completion of all Tenant Improvements (as herein defined) use the Premises for these purposes during ordinary business hours. Nothing herein precludes Tenant from using the Premises for community meetings and other purposes during non-business hours.
Lease Agreement ¶ 5.1 (emphasis added); FAC ¶¶ 11-13.
With respect to this last subject – the rental of the premises to outside groups during non-business hours – the lease places no restrictions on the Center, and the undisputed evidence in the summary judgment record states that the City "has no input or control over the entities to which the Western Justice Center may rent its meeting rooms at the premises during the evening hours." Duyshart decl. ¶ 9. It further states that the City "derives no income, revenue or other financial benefit on account of the Western Justice Center's rental of meeting rooms." Duyshart decl. ¶ 7.
In 1994, the City agreed to provide up to $458,000 to the Center for tenant improvements. FAC ¶ 14. The City acquired these funds through its governmental borrowing authority. FAC ¶ 15. The Center, in turn, repaid the funds through rental payments to the City. FAC ¶¶ 14-15. Those loans have now been repaid, and the Center's current rent – through the end of the lease – is $1 per month. FAC ¶ 15. Also in 1994, the Pasadena Surplus Property Authority transferred title to the property to the City, subject to the Center's lease. FAC ¶ 14.
The quitclaim deed includes a rider by which the "grantee" covenants not to "discriminate upon the basis of race, color, religion, sex, or national origin in the use, occupancy, sale, or lease of the property, or in their employment practices conducted thereon." ECF 30-2 at 99. At the October 23 hearing, counsel for the City suggested that the Center was the grantee under this rider. It appears, however, that the City was the grantee.
Before the events giving rise to this litigation, the Club periodically rented the Maxwell House from the Center for Club events. FAC ¶ 16; Gabriel decl. ¶ 2. Consistent with that practice, in early 2017 the Club rented the Maxwell House from the Center for a Club event to take place on April 20, 2017. FAC ¶ 17; Gabriel decl. ¶ 3. The rental fee was $190, and the scheduled speaker was Dr. John Eastman, a noted professor of constitutional law. FAC ¶ 17, 20-21; Gabriel decl. ¶ 3.
The Club also inquired about renting the Maxwell House for a Club event to take place in May 2017. Gabriel decl. ¶ 5. In an April 23 email, however, Chirlin informed Gabriel that the Maxwell House would be unavailable for the May event because the Center would no longer rent the premises to political groups:
Nicole forwarded your email to me. I'm sorry you have been left hanging, so to speak. When the issue of your April meeting came to my attention, I presented it to our Executive Committee. It was decided that because of the heightened political rancor these days, and because it is the mission of the Western Justice Center to promote peaceful conflict resolution and reduce prejudice and intergroup conflict, we should not make the Maxwell House available for rental
to political groups – one side or the other.
Because your April meeting was already scheduled I thought it inappropriate for us to implement the policy with regard to that meeting. (It also helped that you have a recognized legal scholar as your speaker.) So the Executive Committee agreed that we could go ahead with the rental for April, but not beyond.
I apologize that this comes to you just days before you leave on vacation. I do hope you are able to find a suitable venue quickly and that you have a safe and lovely vacation.
FAC ¶ 18; Gabriel decl. ¶ 5; Gabriel decl., exh. C.
The complaint incorporates Chirlin's April 3 and April 20, 2017, emails by reference.
The Club contends that the Center applied this new policy selectively. It asserts that, even after Chirlin announced the new policy in April 2017, the Center continued to allow the League of Women Voters Pasadena Area – which subleases a portion of the 55-85 South Grand Avenue property and which the FAC alleges is a "political organization" that "opposes President Trump" – to use the grounds of the Maxwell House for political events. FAC ¶ 18; Gabriel decl. ¶¶ 5-6. ,
On its website, the League of Women Voters Pasadena Area describes itself as "a nonpartisan political organization" that neither supports nor opposes "any political party or candidate." https://my.lwv.org/california/pasadena-area/about.
To support this allegation, the Club relies on Gabriel's declaration, which states in relevant part: "On information and belief, the League of Women Voters continues to rent city-owned property from the Western Justice Center on the Maxwell House campus and the League uses the grounds of the Maxwell House for some of its political events." Gabriel decl. ¶ 6. The City has filed evidentiary objections to this evidence on several grounds, including lack of personal knowledge. ECF 40-1 at 2. See Fed. R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). Because this testimony is not material to the court's analysis, however, the court need not address the City's objections. Notably, the Center has not yet answered the complaint, and so it has not to date either admitted or denied the Club's allegation.
On the afternoon of April 20, 2017, Chirlin informed Gabriel by email that the Club would not be able to use the Maxwell House for the Eastman event scheduled to take place that evening. FAC ¶ 24; Gabriel decl. ¶ 7. Chirlin wrote:
Dear Ms. Gabriel,
It is with regret that I inform you that The Pasadena Republican Club cannot use our facilities for your meeting tonight. While I knew that Prof Eastman was a professor and author, we learned just today that he is the President of the National Organization for Marriage (NOM). NOM's positions on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of the Western Justice Center. Western Justice Center exists to build a more civil, peaceful society where differences among people are valued. WJC works to improve campus climates with a special focus on LGBT bias and bullying. We work to make sure that people recognize and stop LGBT bullying. Through these efforts we have built a valuable reputation in the community, and allowing your event in our facility would hurt our reputation in the community.
We will return the fee that you have paid immediately.
Gabriel decl., exh. D; FAC ¶ 24. Chirlin later informed Gabriel that the decision had been made by the Center's executive committee. FAC ¶ 26; Gabriel decl. ¶ 7. The Club was able to relocate the evening's event to an another venue, but at additional cost and with diminished attendance. FAC ¶¶ 29-31.
In November 2018, the Club filed this action. ECF 1. The operative FAC names three defendants – the Center, Chirlin and the City – and asserts four causes of action. ECF 14.
The first cause of action, arising under 42 U.S.C. § 1983, alleges viewpoint discrimination in violation of the First Amendment against all defendants and is based on the allegation that the defendants discriminated against the Club on account of the viewpoint of the speaker it chose for its event. FAC ¶¶ 32-39. The second cause of action, also arising under § 1983, alleges religious belief discrimination in violation of the First Amendment against all defendants and is based on the allegation that the Center adopted a policy prohibiting the rental of the Maxwell House to political groups, but applied that policy selectively to the Club on account of the viewpoint of the Club and its members. FAC ¶¶ 40-47. The third cause of action, again arising under § 1983, alleges religious belief discrimination against all defendants based on the allegation that the defendants discriminated against the Club on account of the religious viewpoint of the speaker it chose for its event. FAC ¶¶ 48-55. The fourth cause of action, arising under 42 U.S.C. § 1985, is asserted against Chirlin alone. FAC ¶¶ 56-60. It alleges that Chirlin conspired with members of the Center's staff and executive committee to deny civil liberties guaranteed by the First Amendment to the Club and its members, and that the conspiracy was motivated by political and religious animus. FAC ¶¶ 56-60.
Chirlin's motion to dismiss does not challenge this claim under the intra-corporate conspiracy doctrine. See Portman v. County of Santa Clara , 995 F.2d 898, 910 (9th Cir. 1993) (declining to resolve whether "the ‘intra-corporate conspiracy’ doctrine applies in section 1985 cases"); Padway v. Palches , 665 F.2d 965, 968-69 (9th Cir. 1982) (same).
The FAC alleges that the Center and Chirlin are "state actors" for purposes of § 1983 – i.e., that they acted under color of state law – because the property is owned by the City and is leased to the Center to promote the governmental purposes of the City. FAC ¶¶ 33, 41, 49. It seeks declaratory and injunctive relief, compensatory and punitive damages, and attorney's fees and costs. FAC at 21-24.
On May 1, 2019, Chirlin and the Center moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). ECF 26. Chirlin and the Center argue that: (1) they cannot be liable under § 1983 because they did not act under color of state law; (2) the Center cannot be liable under § 1983 because the complaint does not allege a relevant policy or practice of the Center under Monell ; (3) the § 1985 claim fails because the complaint does not allege state involvement in the alleged conspiracy; and (4) the § 1985 claim fails because § 1985 does not reach conspiracies motivated by political or religious animus.
The same day, the City moved for summary judgment, see Fed. R. Civ. P. 56, arguing that the City cannot be liable under § 1983 because the Club cannot establish that any constitutional violation was caused by an official policy or custom of the City. ECF 27.
Both motions were orally argued on October 23, 2019.
LEGAL STANDARD
A motion under Rule 12(b)(6) asserts a "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "In evaluating a 12(b)(6) motion, we accept ‘as true all well-pleaded allegations of fact in the complaint’ and construe them in the light most favorable to the non-moving party." Cedar Point Nursery v. Shiroma , 923 F.3d 524, 530 (9th Cir. 2019) (quoting Corinthian Colls. , 655 F.3d at 991 ). "To survive a motion to dismiss, the complaint ‘must contain sufficient factual matter’ that, taken as true, states ‘a claim to relief that is plausible on its face.’ " Id. (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
Under Rule 56, a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment will be denied if, " ‘viewing the evidence in the light most favorable to the non-moving party,’ there are genuine issues of material fact." Nolan v. Heald Coll. , 551 F.3d 1148, 1154 (9th Cir. 2009) (quoting Leisek v. Brightwood Corp. , 278 F.3d 895, 898 (9th Cir. 2002) ).
DISCUSSION
I. Motion to Dismiss
As noted, the motion to dismiss raises four arguments. The court addresses them seriatim.
A. Whether the Complaint Plausibly Alleges that Chirlin and the Center Were Acting Under Color of State Law
As discussed above, the complaint's first three causes of action arise under § 1983. In their motion to dismiss, Chirlin and the Center challenge these claims on the ground that the complaint fails to plausibly allege that Chirlin, a private person, and the Center, a private entity, were acting under color of state law. ECF 26 at 6-14.
42 U.S.C. § 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
To state a claim under § 1983, a plaintiff must allege not only the violation of a right secured by the Constitution and laws of the United States, but also that "the alleged deprivation was committed by a person acting under color of state law." West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). "Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.’ " Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting Blum v. Yaretsky , 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) ). When addressing whether a private party acted under color of state law, therefore, we "start with the presumption that private conduct does not constitute governmental action." Sutton v. Providence St. Joseph Med. Ctr. , 192 F.3d 826, 835 (9th Cir. 1999).
Courts have used four different tests to determine whether this presumption has been overcome: (1) the public function test; (2) the joint action or symbiotic relationship test; (3) the governmental compulsion or coercion test; and (4) the governmental nexus test. See id. at 835-36 (citing Lugar v. Edmondson Oil Co. , 457 U.S. 922, 939, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) ). There is, however, "no specific formula for defining state action." Id. at 836 (quoting Howerton v. Gabica , 708 F.2d 380, 383 (9th Cir. 1983) ). "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton , 365 U.S. at 722, 81 S.Ct. 856.
Here, the only basis relied on by the Club to support its under-color-of-state-law allegation is the joint action test. "Under the joint action test, we consider whether ‘the state has so far insinuated itself into a position of interdependence with the private entity that it must be recognized as a joint participant in the challenged activity. This occurs when the state knowingly accepts the benefits derived from unconstitutional behavior.’ " Id. (quoting Parks Sch. of Bus., Inc. v. Symington , 51 F.3d 1480, 1486 (9th Cir. 1995) ). The Ninth Circuit has noted that "[a] plaintiff may demonstrate joint action by proving the existence of a conspiracy or by showing that the private party was ‘a willful participant in joint action with the State or its agents.’ " Franklin v. Fox , 312 F.3d 423, 445 (9th Cir. 2002) (quoting Collins v. Womancare , 878 F.2d 1145, 1148 (9th Cir. 1989) ).
The Club argues that this case is controlled by Burton , which involved a restaurant – the Eagle Coffee Shoppe, Inc. – that refused to serve the plaintiff on account of his race. See Burton , 365 U.S. at 716, 81 S.Ct. 856. The restaurant was located in a public parking building in Wilmington, Delaware, and the question presented was whether, given the symbiotic relationship between the state and the restaurant, the restaurant's actions constituted "state action" for purposes of the Equal Protection Clause of the Fourteenth Amendment. See id. at 716-17, 81 S.Ct. 856.
Although Burton involved the "state action" requirement under the Fourteenth Amendment rather than the "under color of law" requirement under § 1983, the Supreme Court has held that "conduct satisfying the state-action requirement of the Fourteenth Amendment satisfies the statutory requirement of action under color of state law." Lugar , 457 U.S. at 935 n.18, 102 S.Ct. 2744.
The Wilmington Parking Authority, in Burton , was a state agency created by the City of Wilmington, and this particular parking building was the parking authority's first project. See id. at 716-18, 81 S.Ct. 856. Before construction began, the parking authority learned that it would be necessary to lease out a portion of the parking building in order to make the project financially viable. See id. at 719, 81 S.Ct. 856. Accordingly, the parking authority entered into several long-term commercial leases with private entities to finance the project. See id. These commercial tenants included a bookstore, a retail jeweler, a food store, and the Eagle Coffee Shoppe. See id. at 719-20, 81 S.Ct. 856. The parking authority and the restaurant entered into a 20-year lease, renewable for an additional 10 years, under which Eagle paid the parking authority $28,700 in annual rent – about $250,000 in today's dollars. See id.
The Supreme Court concluded that "[t]he State has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment." Id. at 725, 81 S.Ct. 856. The Court explained:
The land and building were publicly owned. As an entity, the building was dedicated to "public uses" in performance of the Authority's "essential governmental functions." The costs of land acquisition, construction, and maintenance are defrayed entirely from donations by the City of Wilmington, from loans and revenue bonds and from the
proceeds of rentals and parking services out of which the loans and bonds were payable. Assuming that the distinction would be significant, the commercially leased areas were not surplus state property, but constituted a physically and financially integral and, indeed, indispensable part of the State's plan to operate its project as a self-sustaining unit. Upkeep and maintenance of the building, including necessary repairs, were responsibilities of the Authority and were payable out of public funds. It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits. Guests of the restaurant are afforded a convenient place to park their automobiles, even if they cannot enter the restaurant directly from the parking area. Similarly, its convenience for diners may well provide additional demand for the Authority's parking facilities. Should any improvements effected in the leasehold by Eagle become part of the realty, there is no possibility of increased taxes being passed on to it since the fee is held by a tax-exempt government agency. Neither can it be ignored, especially in view of Eagle's affirmative allegation that for it to serve Negroes would injure its business, that profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency.
Id. at 723-24, 81 S.Ct. 856 (citations omitted). The Court emphasized, however, that "readily applicable formulae may not be fashioned," and thus that "the conclusions drawn from the facts and circumstances of this record are by no means declared as universal truths on the basis of which every state leasing agreement is to be tested." Id. at 725, 81 S.Ct. 856.
To support its contention that Burton is controlling here, ECF 35 at 6-11, the Club argues that the Center and Chirlin were state actors with regard to their operation of the subject property because: (1) the City purchased the property for the public purposes of the City; (2) the City relied entirely on funds provided by the Center to purchase the property; (3) the City borrowed money to finance the repair and restoration of the property and relied entirely on the Center for the repayment of the City's creditors; and, thus, (4) the "Center was indispensable to the financial success of the City's project to acquire and restore this property and to operate it for the public purposes of the City." ECF 35 at 1.
In its briefing and evidentiary objections (ECF 40 at 3; ECF 40-1 at 2-5), the City notes that many of these actions – those occurring between 1989 and 1994 – involved the Pasadena Surplus Property Authority, not the City itself. The City faults the Club for "conflating the Pasadena Surplus Property Authority and the City of Pasadena, with no legal or factual grounds for doing so." ECF 40 at 3. The allegations of the complaint, however, plausibly allege that the Pasadena Surplus Property Authority was an arm or instrumentality of the City, and the evidence in the summary judgment record likewise establishes, at the least, a triable issue on that question. Thus, although not barring the City from pursuing its incipient objection, if necessary, on any future motion, for the purpose of the pending motions, the court assumes that the actions of the Pasadena Surplus Property Authority are attributable to the City.
In the Club's view, "[t]he facts in this case are very similar to the facts in Burton with two differences," both of which serve only to strengthen the case for finding joint action. ECF 35 at 7. "First, rather than relying on the Western Justice Center for only part of the cost of the acquisition [and] construction of the property as was the case in Burton , the City of Pasadena relied entirely on the Western Justice Center." ECF 35 at 7. Thus, "the Western Justice Center's financial participation in this project was even more critical than the restaurant's participation in the Wilmington Parking Authority's construction of the parking structure at issue in Burton. " ECF 35 at 7. "Second, the City relied on the Western Justice Center to accomplish the City's public purposes in acquiring this property" – namely, "creat[ing] a center for the study of dispute resolution and the administration of justice" and "preserv[ing] and restor[ing] ... historic structures in the City." ECF 35 at 7-8.
The court agrees with the Club that there was a degree of joint action here. The City owns the property, purchased the property from the federal government because the Center was ineligible to do so on its own and used its borrowing authority to help finance improvements to the property, albeit at no cost to the City. The Center, in turn, has paid for all aspects of the purchase, improvement and maintenance of the property, and it has used the property in a manner that, in the City's view, benefits the citizens of the City. The mutual benefits that the arrangement confers on the City and the Center plainly establish a symbiotic relationship between them, at least to some degree.
Not every "exchange of ‘mutual benefits,’ " however, "creat[es] the substantial interdependence legally required to create a symbiotic relationship." Brunette v. Humane Soc'y of Ventura Cty. , 294 F.3d 1205, 1214 (9th Cir. 2002) (as amended); see DeBauche v. Trani , 191 F.3d 499, 507 (4th Cir. 1999) (explaining that Burton "certainly does not stand for the proposition that all public and private joint activity subjects the private actors to the requirements of the Fourteenth Amendment"). Here, although the allegations of the complaint demonstrate a degree of interdependence, several countervailing considerations lead the court to conclude that "[t]he interdependence found in Burton was more extensive." Scott v. Eversole Mortuary , 522 F.2d 1110, 1114 (9th Cir. 1975).
First , the Supreme Court has noted that, "in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine ... the extent to which the [private] actor relies on governmental assistance and benefits." Edmonson v. Leesville Concrete Co. , 500 U.S. 614, 621, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (citing Burton , 365 U.S. 715, 81 S.Ct. 856 ); see also Manhattan Cmty. Access Corp. v. Halleck , ––– U.S. ––––, 139 S. Ct. 1921, 1942 n.11, 204 L.Ed.2d 405 (2019) (Sotomayor, J., dissenting) (emphasizing that in Burton the restaurant was "partly maintained" by the parking authority). In Burton , the parking authority provided significant financial support to the restaurant, and the finances of the two were significantly integrated. The parking authority, for example, "covenanted to complete construction expeditiously, including completion of ‘the decorative finishing of the leased premises and utilities therefor, without cost to Lessee,’ including necessary utility connections, toilets, hung acoustical tile and plaster ceilings; vinyl asbestos, ceramic tile and concrete floors; connecting stairs and wrought iron railings; and wood-floored show windows." Burton , 365 U.S. at 719, 81 S.Ct. 856. It also "agreed to furnish heat for Eagle's premises, gas service for the boiler room, and to make, at its own expense, all necessary structural repairs, all repairs to exterior surfaces except store fronts and any repairs caused by lessee's own act or neglect." Id. at 720, 81 S.Ct. 856. In Burton , moreover, "[t]he costs of land acquisition, construction, and maintenance [we]re defrayed entirely from" public funds, and "[u]pkeep and maintenance of the building, including necessary repairs, were responsibilities of the Authority and were payable out of public funds." Id. at 723-24, 81 S.Ct. 856.
Here, by contrast, the Club does not allege that the Center relies in any significant respect on "governmental assistance and benefits." Edmonson , 500 U.S. at 621, 111 S.Ct. 2077. On the contrary, the Club acknowledges that, "[i]n making this purchase, the City relied entirely on funds provided by the Western Justice Center as part of a lease agreement for the property" and that "the City relied entirely on the Western Justice Center for the repayment of the City's creditors." ECF 35 at 1. Whereas in Burton the restaurant was partly maintained by the City, here the lease provides that the City has "no obligation, in any manner whatsoever, to repair and maintain the Premises nor the buildings located thereon nor the equipment therein, whether structural or non-structural, all of which obligations are intended to be that of Tenant." Lease Agreement ¶ 7.3. This case, therefore, lacks the "significant financial integration" present in Burton. Brunette , 294 F.3d at 1213.
Second , the Supreme Court has emphasized that joint action exists under Burton when a public entity "knowingly accepts the benefits derived from unconstitutional behavior." NCAA v. Tarkanian , 488 U.S. 179, 192, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988) ; see Gorenc v. Salt River Project Agr. Imp. & Power Dist. , 869 F.2d 503, 507 (9th Cir. 1989) ("[I]f the state ‘knowingly accepts the benefits derived from unconstitutional behavior,’ as the city did in Burton , then the conduct can be treated as state action." (quoting Tarkanian , 488 U.S. at 192, 109 S.Ct. 454 )).
Here, however, the Club does not allege that the City knowingly accepted any benefits derived from the Center's challenged behavior. First, the complaint does not allege that the City was involved in – or had any knowledge of – the Center's decisions regarding the rental of the premises to outside groups during non-business hours. The City, therefore, could not have knowingly accepted any benefits from those decisions. Second, the complaint does not allege that the City benefited in any significant way from the Center's rental decisions. The City does not receive a portion of the rental fees the Center collects from outside groups, and the Center's rental payments to the City are just $1 per month. FAC ¶ 15.
The Club contends that the Center benefited from the Center's decision to cancel the April 20 contract because the cancellation preserved the Center's reputation in the community, which in turn allowed the Center to better perform its mission – a mission that benefits the citizens of the City. According to the Club:
In cancelling the Pasadena Republican Club's contract to use the Maxwell House property, the Western Justice Center and Judith Chirlin stated that they were acting to preserve the reputation of the Western Justice Center and its ability to carry out its mission of dispute resolution. Thus, the anti-religious bigotry evidenced by the action of the Western Justice Center's executive committee and Ms. Chirlin's email was necessary for the Center's dispute resolution activities. The City profits by this anti-religious bigotry because the discrimination is claimed to be necessary for dispute resolution which was the public purpose of the City in placing Western Justice Center in control of the city-owned Maxwell House property. This is no different than the restaurant's claim in Burton that racial discrimination was necessary to provide the monetary profits that the restaurant would share with the parking authority.
ECF 35 at 9-10. Whatever merit there may be to this attenuated theory of "benefit," see Benn v. Universal Health Sys., Inc. , 371 F.3d 165, 173 (3d Cir. 2004) ("[T]here certainly is no evidence that the government received any tangible benefit from [the private entity], save a possible increase in the general welfare."), the alleged benefit in this case cannot be compared to the direct financial benefit the parking authority in Burton received – $28,700 in annual rent from the segregated restaurant – that was indispensable to the parking authority's financial success. Burton , 365 U.S. at 720, 724, 81 S.Ct. 856. In Burton , the parking authority both contributed financially to the operation of the restaurant and derived a significant share of the profits. Here, by contrast, the City neither contributes to the Center's costs, nor profits in any significant way from Center's activities. Nor did the City have notice of, and acquiesce in, the Center's allegedly discriminatory actions, as was the case in Burton.
Third , in the Ninth Circuit, an "element of financial indispensability ... is ‘at the core of the joint participation found in Burton. ’ " Vincent v. Trend W. Tech. Corp. , 828 F.2d 563, 569 (9th Cir. 1987) (alteration omitted) (quoting Frazier v. Bd. of Trustees of Nw. Miss. Reg'l Med. Ctr. , 765 F.2d 1278, 1288 (5th Cir. 1985) (as amended)). "[I]f a private entity, like the restaurant in Burton , confers significant financial benefits indispensable to the government's ‘financial success ,’ then a symbiotic relationship may exist." Brunette , 294 F.3d at 1213 (emphasis added) (quoting Vincent , 828 F.2d at 569 ).
The Club suggests that this indispensability element is satisfied here because the Center was indispensable to the financial success of this project :
Without the financial participation of the Western Justice Center, there is no showing that the City could have purchased or repaired and refurbished the property. In short, the Western Justice Center's financial participation in this project was even more critical than the restaurant's participation in the Wilmington Parking Authority's construction of the parking structure at issue in Burton.
ECF 35 at 1, 7. In Burton , however, the restaurant's profits were indispensable not only to "the State's plan to operate its project as a self-sustaining unit" but also to "the financial success of a governmental agency" – i.e., to the financial success of the parking authority generally. Burton , 365 U.S. at 723-24, 81 S.Ct. 856. And in applying the indispensability element, the Ninth Circuit has consistently looked to whether a private actor was indispensable to the financial success of the public entity as a whole , not merely to a particular project. See Brunette , 294 F.3d at 1214 (holding that there was no joint action where the plaintiff did not "allege the Media rendered any service indispensable to the Humane Society' s continued financial viability" or allege that the private actors were "indispensable, in any way," to the Humane Society's "continued ... financial success" (emphasis added)); Vincent , 828 F.2d at 569 ("While Trend may have been dependent economically on its contract with the Air Force, Trend was most certainly not an indispensable element in the Air Force's financial success." (emphasis added)); Scott , 522 F.2d at 1115 ("The interdependence found in Burton was more extensive. Because the financial self-sufficiency of the state agency depended upon the profitability of the segregated restaurant, the state agency became a joint venturer in the latter's affairs." (emphasis added)).
The Club emphasizes the fact that the City purchased the property for public use – that is, to benefit the citizens of the City and its environs. ECF 35 at 1, 7; Lease Agreement ¶ 1.2. Standing alone, however, "public benefit is not enough to confer state action." Gorenc , 869 F.2d at 508 (citing Jackson v. Metropolitan Edison Co. , 419 U.S. 345, 352–53, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) ). The fact that the City believes the Center's operations benefit the citizens of the City is relevant to but not dispositive of the state action inquiry. Furthermore, although the Club argues that the Center performs a public purpose, it does not argue that the public function test for state action is satisfied here. Any such argument would fail, because the functions at issue here – operating a center for the study of dispute resolution and the administration of justice and preserving historic properties – are not "traditionally and exclusively governmental." Lee v. Katz , 276 F.3d 550, 555 (9th Cir. 2002) (citing Rendell-Baker , 457 U.S. at 842, 102 S.Ct. 2764 ). Nor does the Club contend that the Center "is an agency or instrumentality" of the City, Lebron v. Nat'l R.R. Passenger Corp. , 513 U.S. 374, 394, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), or that the City "intended either overtly or covertly to encourage discrimination," Moose Lodge No. 107 v. Irvis , 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). The Center's operations are not a City program managed by the Center on the City's behalf; they are the Center's program, independently operated by the Center with the City's limited, albeit not insubstantial, support.
In sum, the specific facts and circumstances favoring a finding of joint action in this case do not come close to approaching those present in Burton. The facts here, simply, are not as supportive of joint action as those in Burton. The court therefore concludes that the allegations of the FAC do not plausibly allege joint action, or a symbiotic relationship, between the Center and Chirlin on the one hand, and the City on the other.
The court recognizes that the City could have negotiated for a term in the lease agreement prohibiting the Center from discriminating in the rental of the premises during non-business hours. Cf. Burton , 365 U.S. at 715, 81 S.Ct. 856 ("[I]n its lease with Eagle the Authority could have affirmatively required Eagle to discharge the responsibilities under the Fourteenth Amendment imposed upon the private enterprise as a consequence of state participation."). This is true, however, of every contractual relationship between a governmental entity and a private party. No court has ever held that every government contractor is a state actor merely because its contract with the government does not prohibit it from engaging in a particular type of discrimination. Cf. Manhattan Cmty. Access Corp. , 139 S. Ct. at 1931 ("[A]s the Court has long held, the fact that the government licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor – unless the private entity is performing a traditional, exclusive public function.").
In essence, given the distance between the facts in this case and those present in Burton , the Club is not asking the court to apply Burton to comparable facts, but to extend Burton to a weaker set of facts. The court declines the invitation to extend Burton because doing so would require reading Burton expansively, contrary to the narrow reading courts have consistently given the case.
As the Court itself said in 1999, the last time it discussed Burton at any length:
Burton was one of our early cases dealing with "state action" under the Fourteenth Amendment, and later cases have refined the vague "joint participation" test embodied in that case. Blum and Jackson , in particular, have established that "privately owned enterprises providing services that the State would not necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton. "
Am. Mfrs. Mut. Ins. Co. , 526 U.S. at 57, 119 S.Ct. 977 (quoting Blum , 457 U.S. at 1011, 102 S.Ct. 2777 ); see also Lebron , 513 U.S. at 409, 115 S.Ct. 961 (O'Connor, J., dissenting) ("Our decision in Burton ... was quite narrow. We recognized ‘the limits of our inquiry’ and emphasized that our decision depended on the ‘peculiar facts [and] circumstances present’ ... and our recent decisions in this area have led commentators to doubt its continuing vitality" (alteration in original)); Gallagher v. Neil Young Freedom Concert , 49 F.3d 1442, 1451 (10th Cir. 1995) ("Subsequent Supreme Court decisions have read Burton narrowly." (citation omitted)); 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 5.13[A], at 5-102, 5-105 (4th ed. 2019-2 Supp.) ("Although neither Burton nor the symbiotic relationship doctrine has been overruled, they have been severely narrowed in scope and diminished as precedent. Supreme Court decisional law has given Burton a very narrow interpretation ...."); Laurence H. Tribe, American Constitutional Law § 18-3, at 1701 n.13 (2d ed. 1988) (noting " Burton 's dwindling precedential power" and suggesting that "[t]he only surviving explanation of the result in Burton may be that found in Justice Stewart's concurrence"); Erwin Chemerinsky, Constitutional Law § 6.4, at 581 (6th ed. 2019) (" Burton never has been overruled. Yet practically speaking, it may be a relic of an era, before the Civil Rights Act of 1964, when the Supreme Court tried to find ways to apply the Constitution to forbid private discrimination.").
The court concludes that the FAC does not plausibly allege that Chirlin or the Center acted under color of state law, as § 1983 requires. Chirlin and the Center, therefore, are entitled to dismissal of the complaint's first three causes of action.
B. Whether the Complaint Plausibly Alleges the Center's Liability Under Monell
The Center seeks dismissal of the first three causes of action on the alternative ground that the complaint does not plausibly allege its liability under Monell.
Under Monell , "[i]t is only when the execution of the government's policy or custom inflicts the injury that the municipality may be held liable under § 1983." City of Canton v. Harris , 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (alterations and internal quotation marks omitted). A § 1983 plaintiff may establish municipal liability in one of three ways:
First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy.... Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.
Gillette v. Delmore , 979 F.2d 1342, 1346-47 (9th Cir. 1992) (citations and internal quotation marks omitted).
As a threshold matter, the Club contends that Monell does not apply to private entities "that are state actors" under Burton. ECF 35 at 11-12. The Club, argues, therefore, that it need not satisfy Monell 's policy or custom requirement. In Tsao v. Desert Palace, Inc. , 698 F.3d 1128, 1138-39 (9th Cir. 2012), however, the Ninth Circuit squarely held that Monell "applies to suits against private entities under § 1983." The Club's briefing does not discuss Tsao , let alone distinguish it. Thus, the court concludes that, to make out a claim against the Center, the Club must show that any constitutional violation "was caused by an official policy or custom" of the Center. Id. at 1139. The Club next contends that this requirement is satisfied because the complaint "alleges that the discriminatory actions in this case were taken by the executive director and the executive committee of the Western Justice Center," and "[t]hese are the individuals and committees through whom the Western Justice Center acts." ECF 35 at 12.
Under Monell , however, the question is not whether the Center acts through these individuals. The question is whether these individuals possessed "final policy-making authority" with respect to the rental of the premises to outside groups during non-business hours. Gillette , 979 F.2d at 1346. Although it may be that these individuals possessed final policymaking authority, it is also possible – perhaps even probable – that they possessed only decisionmaking authority or discretion to act; final policymaking authority may have rested with the Center's board of directors. FAC ¶ 6. As the Ninth Circuit explained in Gillette ,
a municipality may be held liable for a single decision by a municipal policymaker. Municipal liability does not attach, however, unless the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official – even a policy-making official – has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.
Id. at 1349 (citations and internal quotation marks omitted). In Pembaur v. City of Cincinnati , 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), for instance, "the personnel decisions of a County Sheriff, who ha[d] discretion to hire and fire employees but [wa]s not the county official responsible for establishing county employment policy, could not be attributed to the municipality." Gillette , 979 F.2d at 1349 (citing Pembaur , 475 U.S. at 484 n.12, 106 S.Ct. 1292 ).
Because the court dismisses the claims against the Center on a different ground (the under-color-of-state-law requirement), it need not address whether the complaint adequately alleges the Center's liability under Monell. The Club is advised, however, that, should it elect to file a second amended complaint, it should more fully and clearly allege – to the extent feasible – facts supporting the inference that any constitutional violation was caused by an official policy or custom of the Center, as required by Tsao.
C. Whether the Complaint Fails to State a Claim Under § 1985, Given the Absence of the City's Involvement
As noted, the Club's fourth cause of action alleges that Chirlin conspired with others to deprive the Club and its members of their rights under the First Amendment. FAC ¶¶ 56-60. Although the complaint alleges only that this claim arises under § 1985, the briefing makes clear that the claim arises under § 1985(3). In the motion to dismiss, Chirlin contends that the complaint fails to state a claim under § 1985(3) because it does not allege that the City was involved in the alleged conspiracy. ECF 26 at 19. Chirlin relies on United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott , 463 U.S. 825, 830, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), where the Supreme Court held that "an alleged conspiracy to infringe First Amendment rights is not a violation of § 1985(3) unless it is proved that the state is involved in the conspiracy or that the aim of the conspiracy is to influence the activity of the state."
42 U.S.C. § 1985(3) states:
If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
The Club argues that the state involvement requirement is satisfied because, "[u]nder Burton , the Western Justice Center and the City of Pasadena are joint participants in the discrimination." ECF 35 at 13. As discussed above, however, the complaint does not plausibly allege joint action under Burton. The complaint, moreover, does not allege that the City was involved in any way with the decisions of the Center challenged in this action. Accordingly, the court concludes that the complaint fails to state a claim under § 1985(3).
D. Whether the Complaint Fails to State a Claim Under § 1985 Because § 1985(3) Does Not Apply to Conspiracies Motivated by Political or Religious Animus
Chirlin argues in the alternative that the complaint fails to state a claim under § 1985(3) because "it alleges, at most, a politically motivated conspiracy, which Section 1985(3) does not reach." ECF 26 at 19-20.
Under Ninth Circuit case law, § 1985(3) – which was adopted to address racially motivated conspiracies – applies to other types of class-based animus where there has been a "governmental determination that such a class merits special protection." Schultz v. Sundberg , 759 F.2d 714, 718 (9th Cir. 1985). This "require[s] either that the courts have designated the class in question a suspect or quasi-suspect classification requiring more exacting scrutiny or that Congress has indicated through legislation that the class required special protection." Id.
It does not appear that the Ninth Circuit has addressed whether § 1985(3) reaches conspiracies motivated by political or religious animus, see Peloza v. Capistrano Unified Sch. Dist. , 37 F.3d 517, 524 (9th Cir. 1994) ("We do not decide whether ... Establishment Clause rights[ ] fall within the protection of section 1985(3)."), and other circuits are divided on these questions. Compare Colombrito v. Kelly , 764 F.2d 122, 130-31 (2d Cir. 1985) (religiously motivated animus covered), Taylor v. Gilmartin , 686 F.2d 1346, 1357-58 (10th Cir. 1982) (same), and Ward v. Connor , 657 F.2d 45, 48 (4th Cir. 1981) (same), with Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer , 90 F.3d 118, 124 (5th Cir. 1996) (religion not covered); also compare Cameron v. Brock , 473 F.2d 608, 610 (6th Cir. 1973) (politically motivated animus covered), with Perez-Sanchez v. Pub. Bldg. Auth. , 531 F.3d 104, 108-09 (1st Cir. 2008) (O'Connor, J.) (political animus not covered).
Because the court dismisses the § 1985(3) claim on the alternative ground that the complaint does not plausibly allege state involvement, it need not reach this question, and it declines to do so.
II. Summary Judgment
As noted above, the complaint asserts three causes of action against the City, each of which arises under § 1983. The City's summary judgment motion argues that the City is entitled to judgment as a matter of law on these claims because the Club has not identified any City "policy or custom" that was the moving force behind any alleged violation of the Club's constitutional rights, as required under Monell. ECF 27. In response, the Club argues, first, that Monell 's policy or custom requirement does not apply here and, in the alternative, that Monell is satisfied because the City has delegated policymaking authority to the Center. ECF 34. The court addresses these arguments seriatim.
The City's summary judgment motion is also directed against the fourth cause of action, which is predicated on a violation of § 1985(3). But that cause of action is alleged only against defendant Chirlin. Thus, the court treats that portion of the City's summary judgment motion as surplusage and need not address it.
A. Whether Monell's Custom or Policy Requirement Applies
The Club contends that it need not satisfy Monell 's policy or custom requirement; that, so long as it can establish joint action under Burton , the City is liable for any constitutional violation committed by the Center, irrespective of any showing that the violation was caused by an official policy or custom of the City. In the Club's view, Burton "held that when a city leases property to a private entity in such a manner, for the purpose of helping to pay for the construction of the public property, both the private entity and the city are bound by the requirements of the Fourteenth Amendment." ECF 34 at 7 (emphasis added) (citing Burton , 365 U.S. at 726, 81 S.Ct. 856 ). According to the Club, to apply the policy or custom requirement here, the court would have to hold that " Burton was somehow impliedly overruled by Monell. " ECF 34 at 12.
This argument misapprehends Burton in several significant respects. First, Burton was decided 17 years before Monell. It is therefore unremarkable that Burton did not discuss Monell 's policy or custom requirement. Second, Burton was not a § 1983 case, and it did not involve a municipal entity: the governmental actor in Burton – the Wilmington Parking Authority – was a state agency. See Burton , 365 U.S. at 716, 81 S.Ct. 856 ("The parking building is owned and operated by the Wilmington Parking Authority, an agency of the State of Delaware ...."); id. at 717, 724, 725, 726, 81 S.Ct. 856 (same). Thus, even if Monell had been on the books in 1961, it would have had no application to the case. Third, even if the parking authority had been a municipal entity, Burton did not address the liability of the parking authority. The only issue the Court decided was whether the restaurant could be held liable. See id. at 726, 81 S.Ct. 856 ("[W]hat we hold today is that when a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself." (emphasis added)).
For all of these reasons, the Club errs by arguing that Burton provides a way to establish municipal liability under § 1983 without having to demonstrate that the alleged constitutional violation was caused by a municipal policy or custom. Burton did not address municipal liability or § 1983. Accordingly, the court does not read Burton as establishing an exception to Monell.
Even assuming, however, that Burton 's joint action test provides an alternative path for establishing municipal liability under § 1983, the court is not persuaded that such an exception to Monell would apply here. In addressing Chirlin and the Center's motion to dismiss, the court explained why, based on the Club's allegations, the complaint does not establish joint action or a symbiotic relationship between the City and the Center under Burton. The court reaches the same conclusion upon its review of the evidence in the summary judgment record. The material facts in the summary judgment record – which are materially indistinguishable from the allegations in the complaint – are undisputed. ECF 27-1; 34-1. Accordingly, the court may determine as a matter of law whether the Center and the City were joint actors under Burton. See Han v. Mobil Oil Corp. , 73 F.3d 872, 875 (9th Cir. 1995) ("When a mixed question of fact and law involves undisputed underlying facts, summary judgment is appropriately granted."). For the reasons discussed in addressing the motion to dismiss, the court concludes as a matter of law that the Center and the City were not joint actors under Burton. The facts and circumstances supporting a finding of joint action here simply are not as compelling as those in Burton , and the court is not prepared to read Burton expansively – extending it to a weaker set of facts – when the Supreme Court and the Ninth Circuit have consistently read the case narrowly.
In sum, the court concludes that Monell applies here because, first, Burton does not establish an exception to Monell 's policy or custom requirement and, second, even if such an exception existed, it would not be satisfied here because the summary judgment record does not support a finding of joint action under Burton. The Club, therefore, must show that any alleged constitutional violation was caused by an official policy or custom of the City.
B. Whether the Policy or Custom Requirement Is Satisfied Here
As noted, a § 1983 plaintiff can satisfy Monell 's policy or custom requirement in one of three ways, including, as relevant here, by proving "that the individual who committed the constitutional tort was an official with ‘final policymaking authority’ and that the challenged action itself thus constituted an act of official governmental policy." Gillette , 979 F.2d at 1346. Final policymaking authority, moreover, may be "delegated by an official who possesses such authority." Christie v. Iopa , 176 F.3d 1231, 1236 (9th Cir. 1999) (quoting City of St. Louis v. Praprotnik , 485 U.S. 112, 124, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion)).
The Club relies on this delegation theory here, arguing that the alleged constitutional violations were caused by a City policy because "[t]he City delegated to the Western Justice Center the authority to make final policy regarding rental of the City-owned Maxwell House property during nonbusiness hours." ECF 34 at 15. The Club contends that the City delegated this authority to the Club because the lease agreement "gave the Western Justice Center total discretion over whether and to whom the property could be rented during nonbusiness hours." ECF 34 at 15.
The Court agrees with the Club that the Center, and not the City, possesses final policymaking authority regarding whether and to whom the Maxwell House may be rented during non-business hours. The Center's policies with respect to these rentals are not constrained by City policies or subject to the City's review. See Christie , 176 F.3d at 1236-37 (citing Praprotnik , 485 U.S. at 127, 108 S.Ct. 915 ). The Center, therefore, is the final policymaker with respect to this rental policy.
That, however, is not the end of the inquiry. To satisfy Monell , the Club also must establish that the Center's policies are those of the City – i.e., that when the Center establishes policy governing the rental of the premises, it is exercising policymaking authority that the City has delegated to the Center and that it is therefore establishing policy on behalf of the City. The court is not persuaded that the Club has made this showing.
There is no question that, when the City acquired this property and leased it to the Center, it conveyed to the Center the right and authority to rent the premises to outside groups. The record does not suggest, however, that this was anything other than a conveyance of a property interest, rather than the delegation of City policymaking authority. Compare Delegate , Black's Law Dictionary (11th ed. 2019) ("To send as a representative with authority to act; to depute"; "To give part of one's power or work to someone in a lower position within one's organization < delegated legislative functions>."), with Conveyance , Black's Law Dictionary ("The voluntary transfer of a right or of property."), and Lease , Black's Law Dictionary ("A contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration, usu. rent." (emphases added)).
Case law explains that delegation occurs when a city delegates a city function to a private party, something that did not occur here: "for an official's acts to constitute municipal policy, it must be demonstrated that policymaking authority for a particular city function was delegated to that official." Hammond v. County of Madera , 859 F.2d 797, 802 (9th Cir. 1988) (emphasis added), abrogated on other grounds as stated in L.W. v. Grubbs , 92 F.3d 894, 898 (9th Cir. 1996). In King v. Kramer , 680 F.3d 1013, 1020 (7th Cir. 2012), and Ancata v. Prison Health Services, Inc. , 769 F.2d 700, 704-05 & n.9 (11th Cir. 1985), for example, the delegation doctrine applied where counties delegated to private entities their duty to provide medical care to county jail inmates. Similarly, in Herrera v. County of Santa Fe , 213 F. Supp. 2d 1288, 1292 (D.N.M. 2002), the delegation doctrine applied where the county delegated operation of the county detention center to a private entity. Alternatively, delegation may occur when a municipality contracts with a private party to manage municipal property. Cf. Manhattan Cmty. Access Corp. , 139 S. Ct. at 1933 (suggesting that state action would exist if a private entity was "simply managing government property on behalf of" a city).
Here, the evidence establishes only that the City conveyed a property interest to the Center. Under the lease, the Center acquired the right to rent the premises to outside groups during non-business hours. Thus, when the Center rents the premises to outside groups, it is exercising its own authority as the holder of a possessory interest in the property, and it is renting out the premises on its own behalf. There is no evidence that policymaking authority for a particular city function was delegated to the Center, that the Center is exercising City authority when it rents out the premises, or that the Center is renting out the premises on the City's behalf. As noted earlier, the Center's activities are not City programs managed by the Center on the City's behalf; they are the Center's own programs, operated by the Center on its own behalf, with the limited, albeit not insubstantial, support of the City.
In sum, because the undisputed facts show that the Center was not delegated final policymaking authority by the City, the Club cannot establish that the alleged constitutional violations were caused by an official policy or custom of the City, as required under Monell. The City, therefore, is entitled to summary judgment on the Club's § 1983 claims.
CONCLUSION
Chirlin and the Center's motion to dismiss the first amended complaint (ECF 26) is granted. The Club is granted 30 days' leave to file a second amended complaint as against these defendants. See Lopez v. Smith , 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ("[I]n dismissing for failure to state a claim under Rule 12(b)(6), ‘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 the allegation of other facts.’ " (quoting Doe v. United States , 58 F.3d 494, 497 (9th Cir. 1995) ). Alternatively, the Club may notify the court that it does not intend to amend, or if the Club fails to file a second amended complaint within the time allowed, judgment shall be entered in favor of Chirlin and the Center in accordance herewith.
The Ninth Circuit recently held that the plaintiff-appellant had "waived its right to amend" its complaint because "it never asked the district court for such relief." City of San Juan Capistrano v. Cal. Pub. Util. Comm'n , 937 F.3d 1278, 1282 (9th Cir. 2019). That case involved waiver of the right when it is raised for the first time on appeal. Waiver has not been raised in this case and it remains to be seen to what extent San Juan Capistrano affects, in district court, a party's right to amend recognized in Lopez v. Smith .
The City's motion for summary judgment (ECF 27)is granted. Partial judgment in favor of the City shall be entered.
Although, in limited circumstances, the Court has the discretion to permit a complaint to be amended after the grant of summary judgment, see Nguyen v. United States , 792 F.2d 1500, 1503 (9th Cir. 1986) ("Granting leave to amend after summary judgment is ... allowed at the discretion of the trial court"), the Club has not sought further leave to amend. Moreover, it appears that further amendment with respect to the City would be futile.
--------