Lil' Man in the Boat, Inc. v. City and County of San Francisco et al, No. 3:2017cv00904 - Document 49 (N.D. Cal. 2018)

Court Description: ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS by Judge Jon S. Tigar granting 40 Motion for Judgment on the Pleadings. Case Management Statement due by 10/31/2018. Further Case Management Conference set for 11/7/2018 at 2:00 PM in San Francisco, Courtroom 9, 19th Floor. (wsn, COURT STAFF) (Filed on 9/4/2018)
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Lil' Man in the Boat, Inc. v. City and County of San Francisco et al Doc. 49 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 LIL’ MAN IN THE BOAT, INC., 7 Plaintiff, 8 ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS v. 9 CITY AND COUNTY OF SAN FRANCISCO, et al., 10 11 United States District Court Northern District of California Case No. 17-cv-00904-JST Re: ECF No. 40 Defendants. 12 Before the Court is Defendants’ motion for judgment on the pleadings. ECF No. 40. For 13 14 the reasons stated below, the Court will grant the motion. 15 I. FACTUAL BACKGROUND Plaintiff Lil’ Man In the Boat, Inc. (“Lil’ Man”) “owns and operates a licensed commercial 16 17 charter Motor Vessel ‘Just Dreaming’ that provides transportation and hospitality services on the 18 San Francisco Bay both for locals and visitors from all over the globe.” ECF No. 33, First 19 Amended Complaint (“FAC”) ¶¶ 1.1 Since 2006, Lil’ Man has “operate[d] within the jurisdiction 20 of the Port of San Francisco, and by Port regulation, must load and unload its passengers at the 21 North Side Dock of Pier 40’s South Beach Harbor.” Id. ¶¶ 1, 32. Defendants are the City and 22 County of San Francisco, the San Francisco Port Commission, Elaine Forbes, Peter Daley, Jeff 23 Bauer, and Joe Monroe (collectively referred to as “Defendants”). Id. ¶ 4. Defendants are jointly 24 responsible for the regulation of the Port of San Francisco. Id. ¶ 5. As part of their 25 responsibilities, Defendants “exclusively determine[] all landing fees, regulations, and 26 requirements for South Beach Harbor.” Id. ¶ 5. 27 1 28 For the purposes of deciding this motion, the Court accepts as true all allegations set forth in Plaintiff’s FAC. Bill v. Brewer, 799 F.3d 1295, 1299 (9th Cir. 2015). United States District Court Northern District of California 1 Lil’ Man filed this case because San Francisco changed the terms under which it allowed 2 boats to dock at South Beach Harbor. For the years 2013 through 2015, the landing fee for 3 commercial vessels such as Just Dreaming was $160 per hour. Id. ¶ 32, 34. In 2016, Defendants 4 introduced a “Landing Agreement” (the “2016 Agreement”) which required commercial vessel 5 operators to enter a “written landing rights agreement” with Defendant. Id. ¶ 12. The agreement 6 increased landing fees “to $220 for commercial vessel operators,” gave Defendants the right to 7 increase the required fees “at any time,” and “impose[d] a supplemental 7% Gross Revenue Fee.” 8 Id. ¶¶ 32, 39, 40. The gross revenue fee “requires the commercial vessel operator to pay 7% 9 percent of its monthly gross revenues in any month when (i) the 7% percent fee for such calendar 10 month exceeds the (ii) base landing fee for such calendar month.” Id. ¶ 40. This gross revenue 11 fee includes profit realized from the sale of alcoholic beverages. Id. The 2016 Agreement also 12 includes an “Exculpation and Waiver” clause, which Plaintiff construes to require a waiver of its 13 right to bring “every claim for damages against Defendants[,] in violation of the First Amendment 14 right to petition the government for a redress of grievances.” Id. ¶¶ 14, 20, 42. 15 In June 2016, Defendants “ordered Plaintiff and others similarly situated to either” sign the 16 2016 Agreement “or cease all commercial interstate operations as of October 1, 2016.” Id. ¶ 46. 17 Some commercial tenants signed the agreement, but Plaintiff did not, even though Defendants 18 repeatedly threatened that failure to sign the agreement would prevent Plaintiff from using the Port 19 and expose it to criminal trespass charges. Id. Plaintiff paid the 7% gross revenue fee on two 20 occasions in order to continue its previously reserved operations. Id. ¶¶ 17, 49. Plaintiff asserts 21 that the 2016 Agreement essentially “locked [it] out of South Beach Harbor (and, in reality, the 22 City and County of San Francisco) for purposes of conducting [its] business.” Id. 23 Plaintiff’s FAC makes three claims relating to the 2016 Agreement. First, Plaintiff brings 24 a claim for violation of 42 U.S.C. § 1983 (“Section 1983”) claim based on violations of the 25 Tonnage Clause, the Commerce Clause, the First Amendment, and the Rivers & Harbors Act. 26 Second, Plaintiff brings a claim entitled “Declaratory and Injunctive Relief,” although the body of 27 the complaint seeks declaratory relief only. Id. ¶¶ 85-89. And third, Plaintiff brings a claim for 28 unjust enrichment. 2 Plaintiff’s FAC also brings a putative class action. Plaintiff seeks to represent the 1 2 following four classes: 3 (a) All persons and entities licensed by the USCG for commercial passenger service who, at any time during the four years preceding the filing of this action to the date of Class Certification have landed at, moored, or caused passengers to traverse South Beach Harbor and incurred or paid fees to Defendants for that opportunity; 4 5 6 (b) All persons and entities who, at any time during the four years preceding the filing of this action to the date of Class Certification, were licensed commercial passenger vessel operators who were subject to Defendants’ demand that they execute and/or comply with the terms, payments, and conditions of the 2016 Landing Agreement in order to use South Beach Harbor; 7 8 9 10 (c) All persons and entities who, at any time during the four years preceding the filing of this action to the date of Class Certification, were licensed commercial passenger vessel operators and signed the 2016 Landing Agreement and complied with its terms; United States District Court Northern District of California 11 12 13 (d) All persons or entities who, for the past four years to the present, have been licensed for sale and consumption of alcoholic beverages and who were or are subject to Defendants’ demand for payment of a percentage of revenues or profits. 14 15 16 Id. ¶ 50. 17 II. 18 PROCEDURAL BACKGROUND Plaintiff filed its original complaint on February 22, 2017, making four claims: 19 (1) violation of Section 1983 based on violations of the Tonnage Clause, the Commerce Clause, 20 the First Amendment, and the Rivers & Harbors Act, (2) violation of the Bane Act, (3) declaratory 21 and injunctive relief, and (4) unjust enrichment. ECF No. 1. On March 30, 2017, Defendants 22 moved to dismiss the complaint in its entirety. ECF No. 12. The Court denied the motion to 23 dismiss with respect to the Tonnage Clause, Dormant Commerce Clause, and Rivers & Harbors 24 Act, and granted it with respect to the Bane Act claim. ECF No. 29 at 19. It allowed the 25 derivative claims for declaratory relief, injunctive relief, and restitution to survive. Id. at 18. 26 Plaintiff filed its FAC on August 14, 2017. ECF No. 33. Defendants filed this motion for 27 judgment on the pleadings on February 22, 2018. ECF No. 40. In the present motion, Defendants 28 argue that the following claims fail as a matter of law: (1) Plaintiff’s claims for unjust enrichment 3 1 and declaratory relief to the extent they each rely on California Business and Professions Code 2 section 23300; and (2) Plaintiffs’ claim for violation of the First Amendment right to access the 3 courts. 4 III. Both Plaintiff and Defendants ask the Court to take notice of legislative history documents 5 6 from the California legislature relating to California Business and Professions Code section 7 23300.1. ECF Nos. 41, 43. Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not 8 9 United States District Court Northern District of California REQUESTS FOR JUDICIAL NOTICE subject to reasonable dispute” because they are either “generally known within the trial court’s 10 territorial jurisdiction,” or “can be accurately and readily determined from sources whose accuracy 11 cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court concludes that the documents 12 included by the parties are proper subjects of judicial notice and grants their respective requests. 13 See Anderson v. Holder, 673 F.3d 1089, 1094 n. 1 (9th Cir. 2012) (citing Mack v. South Bay Beer 14 Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (finding the Court “may take judicial 15 notice of ‘records and reports of administrative bodies’”). 16 IV. 17 LEGAL STANDARD “After the pleadings are closed – but early enough not to delay trial – a party may move for 18 judgment on the pleadings.” Fed. R. Civ. P. 12(c). The analysis for Rule 12(c) motions for 19 judgment on the pleadings is “substantially identical to [the] analysis under Rule 12(b)(6).” 20 Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citation and quotation marks 21 omitted). Under both rules, “a court must determine whether the facts alleged in the complaint, 22 taken as true, entitle the plaintiff to a legal remedy.” Brooks v. Dunlop Mfg. Inc., No. C 10–04341 23 CRB, 2011 WL 6140912, at *3 (N.D. Cal. Dec. 9, 2011). A plaintiff must allege facts that are 24 enough to raise his right to relief “above the speculative level.” Bell Atl. Corp. v. Twombly, 550 25 U.S. 544, 55 (2007) (citation omitted). “A judgment on the pleadings is properly granted when, 26 taking all the allegations in the non-moving party’s pleadings as true, the moving party is entitled 27 to judgment as a matter of law.” Fajardo v. Cty. of Los Angeles, 179 F.3d 698, 699 (9th Cir. 28 1999) (citation omitted). “Finally, although Rule 12(c) does not mention leave to amend, courts 4 1 have discretion both to grant a Rule 12(c) motion with leave to amend, and to simply grant 2 dismissal of the action instead of entry of judgment.” Lonberg v. City of Riverside, 300 F. Supp. 3 2d 942, 945 (C.D. Cal. 2004) (citations omitted). 4 V. 5 A. 6 Plaintiff argues that Defendants’ arguments for judgment on the pleadings are foreclosed Law of the Case 7 by the law of the case because Defendants previously moved to dismiss the same claims they now 8 attack here. ECF No. 42 at 12-13. The Court does not agree. 9 United States District Court Northern District of California DISCUSSION Under the law of the case doctrine, a court may not consider “an issue that has already 10 been decided by the same court or a higher court in the same case.” Ctr. for Biological Diversity 11 v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013) (citations omitted). “[T]he law of the case acts as 12 a bar only when the issue in question was actually considered and decided by the first court.” 13 United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995), as amended on denial of reh’g (June 2, 14 1995); Liberty Mut. Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir. 1982). As even Plaintiff 15 recognizes, Defendants’ arguments in the present motion are not the same issues considered and 16 decided by the Court before. Strigliabotti v. Franklin Resources, Inc., 398 F. Supp. 2d 1094, 1098 17 (N.D. Cal. 2005) (describing the same issues as ones which are “essentially the same, but with a 18 different emphasis”). The law of the case doctrine therefore does not bar consideration of 19 Defendants’ motion. 20 B. California Business and Professions Code section 23300 21 Plaintiff brings claims for violation of California Business & Professions Code § 23300, 22 which provides, “No person shall exercise the privilege or perform any act which a licensee may 23 exercise or perform under the authority of a license unless the person is authorized to do so by a 24 license issued pursuant to this division.” Cal. Bus. & Prof. Code § 23300. Plaintiff construes this 25 provision to “prohibit[] Defendants from participating in, receiving, or sharing any revenue or 26 profit from alcohol sales within the state.” FAC ¶ 13. Plaintiff seeks a declaration that 27 Defendants’ alcohol-related charges are prohibited by Section 23300 and also seeks the return of 28 any charges Defendants have already collected. Id. ¶¶ 85-96. 5 1 2 because that statute does not give contain a private right of action, and Plaintiff cannot indirectly 3 create a private right of action by recasting its claims as ones for unjust enrichment and 4 declaratory relief. ECF No. 40 at 13, 16. Defendants further argue that Plaintiff’s claim would 5 fail even if the Court were to consider it on the merits because Defendants’ alcohol-related charges 6 do not violation section 23300. Id. at 19. 7 United States District Court Northern District of California Defendants argue that Plaintiff cannot sue for an alleged violation of section 23300 Defendants are correct that there is no private right of action for a violation of section 8 23300. The California Constitution grants the Department of Alcoholic Beverage Control (“ABC 9 Department”) exclusive jurisdiction to enforce the Alcoholic Beverage Control Act (“ABC Act”), 10 including section 23300. See City of Oakland v. Superior Court, 45 Cal. App. 4th 740, 759 (1996) 11 (citing Cal. Const., art. XX, § 22). Under California law, “a statute creates a private right of action 12 only if the statutory language or legislative history affirmatively indicates such an intent.” 13 Farmers Ins. Exch. v. Superior Court, 137 Cal. App. 4th 842, 850 (2006); see also id. at 849-50 14 (“A statute creates a private right of action only if the enacting body so intended.”). The ABC Act 15 does not provide for a private right of action. Cal. Bus. & Prof. Code § 23053.1 (entrusting the 16 ABC Department with the power to bring an action to enforce the ABC Act). 17 Plaintiff argues that a recent California Court of Appeal decision, Wiseman Park, LLC v. 18 Southern Glazer’s Wine and Spirits, LLC, recognized that the ABC Department’s jurisdiction over 19 ABC Act claims is not entirely exclusive. 16 Cal. App. 5th 110, 123-24 (2017). Plaintiff in that 20 case was a restaurant that sometimes purchased alcoholic beverages from the defendant wholesale 21 distributor. Both were licensed by the ABC. Defendant’s form contract required a customer 22 whose invoice was unpaid by a certain time to pay a “carrying charge” in addition to the interest 23 “penalty” mandated by the Alcohol Beverage Control Act. The plaintiff sued the defendant 24 seeking return of the excess charges. In assessing whether it had jurisdiction over the claim, the 25 Wiseman court distinguished between two types of claims: claims about whether non-licensees are 26 performing acts that require a license, such as selling alcohol, on the one hand, and other claims, 27 such as contract disputes between licensees, on the other hand. Id. at 125-26. The court 28 concluded that the former are under the ABC Department’s exclusive jurisdiction, while the latter 6 1 are not. Id. at 121, 126 (citing California v. LaRue 409 U.S. 109, 120 (1972) and Sail’er Inn, Inc. 2 v. Kirby, 5 Cal.3d 1, 20–21 (1971) for the proposition that the ABC Department has exclusive 3 jurisdiction to enforce improprieties with the sale of alcoholic beverages). 4 Here, Plaintiff’s claims are, at bottom, that Defendants are improperly acting as licensees 5 by sharing in the revenues of alcohol sales. ECF No. 42 at 13-14 (arguing that as non-licensees, 6 Defendants are unlawfully exercising a privilege of a licensee when they seek revenue-sharing 7 fees from alcohol sales). Accordingly, Plaintiff’s claims fall within the former category and are 8 barred by the ABC Act’s exclusive jurisdiction. Wiseman does not change the Court’s conclusion 9 that Plaintiff lacks a private right of action to sue for a violation of section 23300. United States District Court Northern District of California 10 That Plaintiff’s claims are denominated “declaratory relief” and “unjust enrichment” also 11 does not change this result. When a plaintiff lacks a private right of action under a particular 12 statute, she cannot argue around that limitation by bootstrapping her cause of action onto an unjust 13 enrichment or declaratory relief claim based on the same statute. Peterson v. Cellco Partn., 164 14 Cal. App. 4th 1583, 1596-97 (Cal. App. 4th Dist. 2008); see also N. County Comms. Corp. v. 15 California Catalog & Tech., 594 F.3d 1149, 1158 (9th Cir. 2010) (same with respect to 16 declaratory relief). 17 Plaintiff argues that the more recent California Supreme Court case of Lu v. Hawaiian 18 Gardens Casino, Inc., 50 Cal. 4th 592, 594 (2010), allows a plaintiff to bring common law causes 19 of action related to a violation of law even where there is no private right of action. In Lu, the 20 plaintiff – a casino dealer – sued his employer for pooling tips in violation of Labor Code section 21 351. That section “prohibits employers from taking any gratuity patrons leave for their 22 employees, and declares that such gratuity is ‘the sole property of the employee or employees to 23 whom it was paid, given, or left for.’” Id. at 594 (quoting Cal. Lab. Code § 351). The casino’s 24 policy required dealers to contribute 15 to 20 percent of their tips to a tip pool to be shared among 25 other designated employees who provided service to casino patrons. 26 The court concluded that section 351 did not “contain a private right to sue.” Id. at 595. In 27 dicta, however, the court recognized that although a plaintiff could not sue for violations of section 28 351 because it lacked a private right of action, id. at 597, she could, in theory, bring common law 7 1 claims, such as a claim for conversion, regarding the same conduct: 2 Contrary to plaintiff's suggestion, our holding that section 351 does not provide a private cause of action does not necessarily foreclose the availability of other remedies. To the extent that an employee may be entitled to certain misappropriated gratuities, we see no apparent reason why other remedies, such as a common law action for conversion, may not be available under appropriate circumstances. 3 4 5 6 Id. at 603-04. Lu does not assist Plaintiff. The common law claims imagined by the Lu court 7 existed independently of section 351, and Plaintiff could prove (or at least allege) the elements of 8 those claims without relying on that section. By contrast here, Plaintiff’s claims expressly 9 incorporate section 23300, and ask the Court to find a violation. Finally, even if the Court were to consider Plaintiff’s section 23300 claims on the merits, United States District Court Northern District of California 10 11 they would fail as a matter of law. Section 23300 does not preclude a municipality from 12 establishing rental fees based on a percentage of a business’ total gross revenue, even if that 13 revenue includes alcohol sales.2 Under section 23300, “[n]o person shall exercise the privilege or 14 perform any act which a licensee may exercise or perform under the authority of a license unless 15 the person is authorized to do so by a license issued pursuant to this division.” Cal. Bus. & Prof. 16 Code § 23300. California courts have interpreted section 23300 to provide “that no person may 17 perform any act for which a license is required under the Act unless the person is so authorized 18 under a license.” Richards v. Dep’t of Alcoholic Beverages Control, 139 Cal. App. 4th 304, 313 19 (2006); see also Quan v. San Francisco Police Dep’t, No. C 10-01835 MEJ, 2012 WL 4477621, at 20 *5 (N.D. Cal. Sept. 27, 2012) (interpreting section 23300 to prohibit the sale of an alcoholic 21 beverage without a license). A license issued by the Department of Alcohol and Beverage Control 22 allows a licensee to manufacture, import and sell alcoholic beverages in the State. Cal. Const. art. 23 XX, § 22. Licensees are authorized to, for example, (a) deliver or receive deliveries of distilled 24 spirits, (b) store, bottle, cut, blend, mix, flavor, color, label, and package distilled spirits, (c) store 25 As previously noted, Plaintiffs’ second cause of action is titled “Declaratory and Injunctive Relief,” but requests only “a declaration of rights,” and “a declaratory judgment.” FAC ¶¶ 85-89. Plaintiff argues that Defendants “do not challenge Plaintiff’s injunctive relief claim to the extent it is based on section 23300.” ECF No. 42 at 20 n. 5. However, there is no such claim in the complaint. 2 26 27 28 8 1 and deliver distilled spirits, and (d) sell wine. Cal. Bus. & Prof. Code § 23355.1; see also id.§§ 2 23356 et seq. (authorizing beer tasting, wine blending, wine growing, importing and other specific 3 activities). Here, Defendants are not attempting to sell, manufacture, import or otherwise exercise 4 any privilege or perform any act that reserved for those with a license. Thus, Section 23300 does 5 not apply to the revenue-sharing agreement presented by Defendants. United States District Court Northern District of California 6 Plaintiffs argue that a recently enacted statute, section 23300.1, provides the “only 7 exception” to section 23300’s bar on non-licensees exercising the privileges of licensees, and 8 helps to explain – by implication – why section 23300 bars the revenue-sharing agreement at 9 issue. ECF No. 42 at 14-15. Section 23300.1 provides that “written agreement[s] regarding the 10 sharing or splitting of gross revenue from the sale of alcoholic beverages between a licensee and a 11 district agricultural association . . . . is not the exercise of a license privilege or performance of an 12 act for which a license is required, unless the agreement, or any other related agreement or 13 understanding, results in an unlicensed person exercising control or undue influence over a 14 licensee or the operation of a licensed business.” Cal. Bus. & Prof. Code § 23300.1. In other 15 words, the California legislature recently clarified that state fairs are not required to become 16 licensees in order to enter into written agreements to share revenues from alcohol beverage sales 17 by licensees. 18 Section 23300.1 does not describe revenue-sharing as an exercise of a privilege or 19 performance. Rather, the language of the statute confirms that this kind of agreement is not an 20 exercise of a privilege or performance of an act specifically reserved for licensees “unless the 21 agreement . . . results in an unlicensed person exercising control or undue influence over a 22 licensee or the operation of a licensed business.” Cal. Bus. & Prof. Code § 23300.1 (emphasis 23 added). “Ordinarily, the words of the statute provide the most reliable indication of legislative 24 intent.” People v. Jefferson, 21 Cal. 4th 86, 94, 980 P.2d 441, 446 (1999) (citation omitted). 25 To the extent the statute is ambiguous, “a court may consider extrinsic evidence of the 26 legislature’s intent,” including “the statutory scheme of which the provision is a part, the history 27 and background of the statute, the apparent purpose, and any considerations of constitutionality.” 28 Hughes v. Bd. of Architectural Exam’rs, 17 Cal. 4th 776, 772 (1998)). The legislative history of 9 1 section 23300.1 also suggests that a revenue-sharing agreement does not violate the statute. That 2 history shows that the statute’s author intended to “clarify that the mere existence of revenue- 3 sharing agreements does not constitute the exercising of license privileges.” ECF No. 41 at 7 4 (emphasis added).3 Thus, to the extent the language and legislative history of section 23300.1 can 5 be read to favor either side in this case, they favor the Defendants. In short, Plaintiff’s claims for unjust enrichment and declaratory relief based on Section 6 7 23300 fail as a matter of law, and Defendants’ motion for judgment on these claims is 8 GRANTED. C. 9 Plaintiff alleges that Defendants have interfered with its right to access the courts protected 10 United States District Court Northern District of California Plaintiff’s First Amendment Claim for Denial of Access to the Courts Fails 11 by the First Amendment Right to Petition by including a liability waiver in the 2016 Landing 12 Agreement, and refusing to allow Plaintiff to use the guest docks at South Beach Harbor until 13 Plaintiff signs the agreement. Defendants argue that Plaintiff cannot bring this claim because 14 (1) to bring a claim based on a coerced waiver, Plaintiff must identify the legal claims that are 15 extinguished by the waiver; and (2) Plaintiff must actually be subject to the waiver. ECF No. 40 16 at 24. The second of these arguments is persuasive. Plaintiff’s first argument derives from Christopher v. Harbury, 536 U.S. 403 (2002). In 17 18 that case, Jennifer Harbury alleged that “Government officials intentionally deceived her in 19 concealing information that her husband, a foreign dissident, was being detained and tortured in 20 his own country by military officers of his government, who were paid by the Central Intelligence 21 Agency (CIA).” Id. at 405. Harbury alleged that this official deception denied her access to the 22 courts “by leaving her without information, or reason to seek information, with which she could 23 24 25 26 27 28 3 The legislative history of section 23300.1 cites to an Attorney General opinion from 1966, which explained that a licensee “may enter into a sublease or concession agreement for the operation of a cardroom on the licensed premises” on the condition that the licensee “retain[] full authority over the sale of alcoholic beverages, enforcement of the laws and Department [of Alcohol Beverage Control] rules relating to the sale of alcoholic beverages, and where no part of the revenue from the sale of such beverages inures to the benefit of the cardroom operator.” ECF No. 43 at 22. The legislative history of 23300.1 shows that the Attorney Genereal misunderstood the scope of Section 23300. 10 1 have brought a lawsuit that might have saved her husband's life.” Id. The Supreme Court held 2 that Harbury did not state an actionable claim. One basis for its holding was that Harbury failed to 3 identify an underlying cause of action she would have raised had it not been for the government’s 4 deception. Id. The Supreme Court explained that the right of access to the courts “is ancillary to 5 the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of 6 court.” Id. at 415. “Even in forward-looking . . . actions to remove roadblocks to future litigation, 7 the . . . plaintiff must identify a nonfrivolous, arguable underlying claim.” Id. This rule is 8 supported by basic notions of due process. “Like any other element of an access claim, the 9 underlying cause of action . . . must be addressed by allegations in the complaint sufficient to give 10 United States District Court Northern District of California 11 fair notice to a defendant.” Id. at 416. The present case is distinguishable from Harbury. There, the plaintiff failed to identify 12 any claim she would have brought had she not been misled. By contrast here, Lil’ Man’s 13 complaint contains precisely the claims it would bring in the absence of a waiver – because it has 14 actually brought them. As Plaintiff states in its opposition, “the 2016 Landing Agreement . . . 15 means [Plaintiff’s] claims in this lawsuit (e.g., the Tonnage Clause, Rivers & Harbors Act, 16 Commerce Clause, and others) are entirely waived.” ECF No. 42 at 24. This satisfies the 17 requirement that Plaintiff identify its underlying claim. 18 Defendants’ second argument, that Plaintiff cannot sue because it is not (yet) actually 19 subject to the waiver, is more persuasive. Avalos v. Baca is instructive. In that case, plaintiff was 20 “over-detained” by the Los Angeles Sheriff’s Department, which should have transferred him to 21 another county upon arrest but instead kept him in custody for two months. Avalos v. Baca, 596 22 F.3d 583, 585-86 (9th Cir. 2010). On the day of plaintiff’s release, a sheriff’s deputy handed him 23 an agreement to release any potential claims against LASD in exchange for $500, and a few weeks 24 later deputies came to his home with a release and a check in that amount. Id. at 586. Although 25 he did not speak English or understand the paperwork, he signed the release and cashed the check. 26 Avalos later sued the LASD and individual deputies, alleging not only claims for over-detention, 27 but also a claim for what he denominated a “coercive in-custody settlement process” in violation 28 of 42 U.S.C.A. § 1983. Id. at 589. 11 The district court granted summary judgment in defendants’ favor on this claim, and the 1 2 Ninth Circuit affirmed. The court held, “[b]ecause a coerced waiver does not extinguish a 3 detainee's claim for over-detention or false imprisonment, there is no freestanding constitutional 4 right to be free of a coercive waiver. Id. at 590-91 (quotation and citation omitted). When a 5 plaintiff brings a lawsuit for an unconstitutional condition, the defendant may raise a waiver of 6 that right as an affirmative defense, and the plaintiff can then attack the waiver by showing it was 7 coerced or provided involuntarily. Id. The existence of the waiver itself – coercive or not – does 8 not provide the basis for a claim. Id. Similarly here, there is no freestanding coercive waiver claim. Plaintiff must actually sign United States District Court Northern District of California 9 10 the waiver, then see if Defendants assert it. At that point, Plaintiff can dispute its validity. But 11 Lil’ Man may not bring a standalone claim for coercive waiver, because the law does not 12 recognize such a claim. Accordingly, the Court GRANTS Defendants’ motion for judgment on 13 the pleadings with respect to Plaintiff’s access to the courts claim.4 CONCLUSION 14 For the aforementioned reasons, Defendants’ motion for judgment on the pleadings as to 15 16 Plaintiff’s First Amendment, and section 23300 unjust enrichment and declaratory relief claims is 17 GRANTED with prejudice. The Court sets a further case management conference on November 7, 2018 at 2:00 p.m. 18 19 An updated joint case management statement is due October 31, 2018. IT IS SO ORDERED. 20 21 Dated: September 4, 2018 ______________________________________ JON S. TIGAR United States District Judge 22 23 24 25 26 27 In light of this conclusion, the Court need not reach Defendants’ two remaining arguments regarding Plaintiff’s First Amendment claim. 12 4 28