Robles v. In the Name of Humanity, We Refuse to Accept a Fascist America et al, No. 4:2017cv04864 - Document 51 (N.D. Cal. 2018)

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Robles v. In the Name of Humanity, We Refuse to Accept a Fascist America et al Doc. 51 1 2 3 4 5 6 7 8 United States District Court Northern District of California 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 KIARA ROBLES, 13 Plaintiff, 14 15 16 Case No. 17-cv-04864-CW v. IN THE NAME OF HUMANITY, WE REFUSE TO ACCEPT A FASCIST AMERICA, et al., 17 Defendants. 18 ORDER GRANTING THE REGENTS’ MOTION TO DISMISS; GRANTING BERKELEY’S MOTION TO DISMISS; AND GRANTING IN PART MIRABDAL’S MOTION TO DISMISS OR STRIKE PURSUANT TO ANTISLAPP STATUTE (Dkt. Nos. 11, 16, 43) 19 Plaintiff Kiara Robles filed this suit against Defendants In 20 the Name of Humanity, We REFUSE to Accept a Fascist America 21 (ANTIFA), The Regents of the University of California (Regents), 22 University of California Police Department (UCPD), the City of 23 Berkeley (Berkeley), Ian Dabney Miller, Raha Mirabdal, and DOES 24 1-20. Docket No. 15. On October 2, 2017, Berkeley moved to 25 dismiss the complaint. Docket No. 11. On October 4, 2017, the 26 Regents also moved to dismiss the complaint. Docket No. 16. On 27 February 8, 2018, Mirabdal moved to dismiss the complaint or to 28 1 strike it pursuant to the anti-SLAPP statute. 2 The Court found these motions to dismiss suitable for disposition 3 on the papers. 4 Court GRANTS Berkeley’s motion to dismiss, GRANTS the Regents’ 5 motion to dismiss, and GRANTS IN PART Mirabdal’s motion to 6 dismiss or strike. Having reviewed the papers and the record, the 7 8 BACKGROUND I. Factual Background 9 United States District Court Northern District of California Docket No. 43. Unless otherwise noted, the factual background is taken from 10 the complaint, which is assumed to be true for purposes of 11 Defendants’ motions to dismiss or strike. 12 Robles is a resident of Oakland, California. Complaint at 13 3. 14 Yiannopoulos, a conservative gay media personality and political 15 commentator, which was hosted at the University of California 16 Berkeley (UC Berkeley) by a registered student organization. 17 3-4, ¶ 44. 18 Berkeley. 19 Sproul Plaza to hear Yiannopoulos speak. On February 1, 2017, she planned to attend a speech by Milo 20 Id. The Regents controls, administers, and manages UC Id. ¶ 6. Robles and others arrived at UC Berkeley’s Id. at 3. Around 1,500 protestors associated with ANTIFA also gathered 21 at Sproul Plaza. 22 American, left wing, anti-Trump, non-profit organization that 23 organizes demonstrations to achieve its political agenda.” 24 at 4. 25 ANTIFA orchestrated the violence in order to disrupt the 26 Yiannopoulos event. 27 interviewed by news station KGO-TV about her thoughts related to 28 the event, protestors surrounded her “combatively” and yelled Id. According to Robles, ANTIFA is “a radical ANTIFA protestors soon “erupted into violence.” Id. ¶ 48. Id. Id. at 3. While Robles was being 2 1 that she was a “fascist.” 2 masked and unmasked assailants with pepper spray and bear mace. 3 Id. at 3, ¶¶ 50-51. 4 Id. ¶ 49. Robles was attacked by both At the time of the attack, there were “no campus police close enough to Robles to protect her from her assaulter.” 6 ¶ 52. 7 members waited in the Student Union building, within eyesight of 8 the violence happening outside, watching the protestors become 9 United States District Court Northern District of California 5 more belligerent and dangerous.” Id. Robles alleges that “nearly 100 campus police and SWAT Id. (emphasis omitted). Robles 10 alleges that officers from UCPD and the City of Berkeley Police 11 Department (BPD) could see the attacks, yet they did not act to 12 protect any of the victims. 13 Id. ¶ 54. Soon after, Robles and others were again attacked by 14 protestors. 15 face and body with flagpoles” until she “was forced to escape by 16 jumping over a metal barrier.” 17 ANTIFA protestor, and several unknown assailants “surrounded” her 18 “combatively,” and Mirabdal “shined a flashlight aggressively” in 19 Robles’ face, “blinding” her and “placing her in fear and 20 apprehension of harm.” 21 assisted Robles or apprehended her attackers. 22 II. 23 Miller, an ANTIFA protestor, “struck” Robles “in the Id. ¶ 55. Id. ¶ 64. Mirabdal, another Again, neither the UCPD or BPD Id. ¶ 66. Procedural Background On June 5, 2017, Robles filed a related suit, Robles I, 24 against nearly all of the Defendants in the present suit -- the 25 Regents, UCPD, BPD, ANTIFA, Miller and Mirabdal -- as well as 26 several others -- Janet Napolitano, President of the University 27 of California; Monica Lozano, Chair of the Regents; Nicholas 28 Dirks, Chancellor of UC Berkeley; the Coalition to Defend 3 Affirmative Action, Integration, & Immigrant Rights, and Fight 2 for Equality by Any Means Necessary; Jesse Arreguin, mayor of 3 Berkeley; Margo Bennett, Chief of the UCPD; Andrew Greenwood, 4 Chief of the BPD; John Burton, California Democratic Party 5 Chairman; Nancy Pelosi, Minority Leader of the House of 6 Representatives; George Soros, an individual; and DOES 1-20. 7 Robles I, Case No. 17-3235, Docket No. 1. 8 complaint, she asserted claims for: (1) violation of First 9 United States District Court Northern District of California 1 Amendment rights under 42 U.S.C. § 1983; (2) violation of Equal Id. In her Robles I 10 Protection rights under 42 U.S.C. § 1983; (3) negligence; 11 (4) gross negligence; (5) premises liability; (6) negligent 12 infliction of emotional distress; (7) intentional infliction of 13 emotional distress; (8) assault; (9) battery; and (10) violation 14 of Bane Act, California Civil Code section 52.1. 15 13, 2017, BPD, Arreguin, and Greenwood moved to dismiss the 16 complaint. 17 Bennett, Dirks, Lozano, and Napolitano also moved to dismiss the 18 complaint. 19 dismiss the complaint. 20 could be decided, Robles requested that the undersigned 21 voluntarily recuse from the case. 22 request was denied on July 25, 2017. 23 that same day, Robles voluntarily dismissed the case. 24 Docket No. 57. 25 Id., Docket No. 46. Id., Docket No. 51. Id. On July On July 17, 2017, the Regents, One day later, Soros moved to Id., Docket No. 52. Before the motions Id., Docket No. 50. This Id., Docket No. 56. On Id., Less than a month later, on August 22, 2017, Robles filed 26 the instant suit, Robles II, against the Regents, Berkeley, UCPD, 27 ANTIFA, Miller, and Mirabdal. 28 the same set of facts as Robles I and nearly the same set of Docket No. 1. 4 Robles II involves asserted claims, adding only one additional claim for a violation 2 of the Ralph Act, California Civil Code section 51.7. 3 Berkeley filed a motion to relate the two cases, which the Court 4 granted. 5 Berkeley, the Regents, and Mirabdal have moved to dismiss or 6 strike the complaint. Docket Nos. 11, 16, 43. On October 24, 7 2017, Miller filed an answer to the complaint. Docket No. 26. 8 The UCPD and ANTIFA have not filed an answer or motion to 9 United States District Court Northern District of California 1 dismiss.1 Robles I, Case No. 17-3235, Docket Nos. 58, 59. 10 11 Id. LEGAL STANDARD A complaint must contain a “short and plain statement of the 12 claim showing that the pleader is entitled to relief.” 13 Civ. P. 8(a). 14 a claim to relief that is plausible on its face.” 15 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 16 Twombly, 550 U.S. 544, 570 (2007)). 17 12(b)(6) for failure to state a claim, dismissal is appropriate 18 only when the complaint does not give the defendant fair notice 19 of a legally cognizable claim and the grounds on which it rests. 20 Twombly, 550 U.S. at 555. 21 the plaintiff pleads factual content that allows the court to 22 draw the reasonable inference that the defendant is liable for 23 the misconduct alleged.” 24 Fed. R. The plaintiff must proffer “enough facts to state Ashcroft v. On a motion under Rule A claim is facially plausible “when Iqbal, 556 U.S. at 678. In considering whether the complaint is sufficient to state 25 1 26 27 28 As Robles has not filed proof of service for these entities, the Court cannot determine whether these parties have been served within the ninety-day time limit of Federal Rule of Civil Procedure 4(m). Robles shall file proof of service within fourteen days of this order. 5 a claim, the court will take all material allegations as true and 2 construe them in the light most favorable to the plaintiff. 3 Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 4 1061 (9th Cir. 2008). 5 of the complaint, materials incorporated into the complaint by 6 reference, and facts of which the court may take judicial notice. 7 Id. at 1061. 8 conclusions, including threadbare “recitals of the elements of a 9 United States District Court Northern District of California 1 cause of action, supported by mere conclusory statements.” 10 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 11 The court’s review is limited to the face However, the court need not accept legal When granting a motion to dismiss, the court is generally 12 required to grant the plaintiff leave to amend, even if no 13 request to amend the pleading was made, unless amendment would be 14 futile. 15 Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 16 whether amendment would be futile, the court examines whether the 17 complaint could be amended to cure the defect requiring dismissal 18 “without contradicting any of the allegations of [the] original 19 complaint.” 20 Cir. 1990). 21 22 23 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. In determining Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th DISCUSSION I. The Regents’ Motion to Dismiss Robles asserts nine claims against the Regents: violation of 24 her First Amendment rights based on the Regents’ alleged 25 withholding of police protection; violation of equal protection 26 based on her sexual orientation and political viewpoint; 27 negligence; gross negligence; premises liability; negligent 28 infliction of emotional distress; intentional infliction of 6 1 emotional distress; violation of California’s Bane Act; and a 2 claim for injunctive relief. 3 these claims should be dismissed. The Regents contend that all of 4 A. 5 The Regents first asserts that Robles’ First Amendment and Eleventh Amendment equal protection claims are barred by the Eleventh Amendment. 7 Robles brings both of these claims pursuant to 42 U.S.C. § 1983, 8 which creates a federal right of action against “[e]very person” 9 United States District Court Northern District of California 6 who, under color of law, deprives a person of federal 10 constitutional rights. 11 Dep’t of State Police, 491 U.S. 58, 68 (1989). 12 established that states and governmental entities considered 13 “arms of the State” are immune from suits brought in federal 14 court under the Eleventh Amendment and are not “persons” subject 15 to suit under § 1983. 16 Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 (1984). 17 Ninth Circuit has ruled on multiple occasions that the “Regents, 18 a corporation created by the California constitution, is an arm 19 of the state for Eleventh Amendment purposes, and therefore is 20 not a ‘person’ within the meaning of section 1983.” 21 Meyers, 964 F.2d 948, 949–50 (9th Cir. 1992). 22 v. Univ. of California, Los Angeles, 858 F.2d 1394, 1395 (9th 23 Cir. 1988) (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1360 (9th 24 Cir. 1982)) (holding that the Regents is “considered to be an 25 instrumentalit[y] of the state, and therefore enjoy[s] the same 26 immunity as the state of California.”) (internal quotation marks 27 and citations omitted). 28 Regents cannot be sustained. See 42 U.S.C. § 1983; Will v. Michigan It is well- Will, 491 U.S. at 70-71; Pennhurst State The Armstrong v. See also BV Eng’g Thus, Robles’ § 1983 claims against the 7 1 The Eleventh Amendment also bars Robles’ state law claims against the Regents. 3 claims which are brought into federal court under pendent 4 jurisdiction. 5 This is because pendent jurisdiction, a judge-made doctrine of 6 discretion based on considerations of efficiency, cannot override 7 the Eleventh Amendment, a “constitutional limitation on the 8 authority of the federal judiciary to adjudicate suits against 9 United States District Court Northern District of California 2 the State.” 10 The Eleventh Amendment bars state law Pennhurst State Sch. & Hosp., 465 U.S. at 121. Id. at 121-23. Accordingly, Robles’ state law claims against the Regents are also barred. 11 Robles argues that the Regents is not entitled to immunity 12 under the Eleventh Amendment in this case because it was not 13 functioning as an arm of the state. 14 Circuit’s decision in Doe v. Lawrence Livermore Nat. Lab., 65 15 F.3d 771, 775 (9th Cir. 1995), which was reversed by the Supreme 16 Court in Regents of the Univ. of California v. Doe, 519 U.S. 425 17 (1997), Robles argues that the Regents “is an enormous entity 18 which functions in various capacities and which is not entitled 19 to Eleventh Amendment immunity for all of its functions.” 20 at 6. 21 of police protection during the event had nothing to do with any 22 official functions, but rather the Regents’ own personally held 23 beliefs. 24 Relying on the Ninth Opp. Robles contends that the Regents’ intentional withholding Robles’ argument is misguided. Even assuming that it was 25 not overruled by the Supreme Court in Regents, the holding in Doe 26 cited by Robles merely notes that there are exceptions to 27 immunity for certain types of actions. 28 example, the Doe court cited cases where immunity did not apply 8 Doe, 65 F.3d at 775. For to the Regents because “Congress has abrogated [its] immunity 2 from suit in federal court for violation of patent law” and it 3 “waived its Eleventh Amendment immunity by signing a government 4 contract that contemplated possible suits against it in federal 5 court and by entering into a federally regulated area.” 6 Robles fails to explain why an exception applies to this 7 situation. 8 precedent holds that the Regents “is an arm of the state for 9 United States District Court Northern District of California 1 Eleventh Amendment purposes,” “is not a ‘person’ within the 10 meaning of section 1983,” and therefore is immune to § 1983 11 claims. 12 provide any reason to depart from this precedent. 13 is about the Regents’ intent in allegedly withholding police 14 protection, but the Regent’s intent is not relevant to the 15 analysis. 16 Id. Indeed, as discussed above, controlling Ninth Circuit See Armstrong, 964 F.2d at 949–50. Robles does not Her argument Accordingly, the Eleventh Amendment bars all of Robles’ 17 claims against the Regents, which are dismissed from the case. 18 The Court therefore need not discuss the Regents’ other grounds 19 for dismissal. 20 In a footnote, Robles seeks leave to amend her claims “to 21 add the individual decision and policy makers responsible for 22 ordering the stand-down to UCPD during the Mr. Yiannopoulos 23 event.” 24 be futile because Robles already named several individual 25 defendants in Robles I, alleging no facts showing that these 26 individuals acted in their personal capacities, and then did not 27 name the individual defendants at all in Robles II. 28 is not clear that amendment would be futile, Robles’ request for Opp. at 6 n.14. The Regents argues that amendment would 9 Because it 1 leave to amend her claims against the Regents is granted. 2 may attempt to avoid Eleventh Amendment immunity by alleging 3 these claims against individual actors in their personal 4 capacities. 5 II. 6 Robles Berkeley’s Motion to Dismiss Berkeley moves to dismiss Robles’ claims based on the following grounds: (1) with respect to the first and second 8 claims, failure to state a claim for Monell liability; (2) with 9 United States District Court Northern District of California 7 respect to the sixth, seventh, and tenth claims, failure to 10 exhaust administrative remedies; and (3) with respect to the 11 twelfth claim, failure to state a claim for injunctive relief. 12 A. 13 Robles brought her first and second claims against Berkeley Monell liability 14 pursuant to 42 U.S.C. § 1983, alleging that Berkeley violated her 15 First and Fourteenth Amendment rights by willfully withholding 16 police protection at the Yiannopoulos event. 17 Berkeley contends that Robles’ § 1983 claims are not tenable 18 because she does not allege that they were carried out according 19 to a municipal policy or custom. 20 local government may not be sued under § 1983 for an injury 21 inflicted solely by its employees or agents.” 22 Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). 23 Instead, a municipality only faces liability under § 1983 when 24 the “execution of a government’s policy or custom, whether made 25 by its lawmakers or by those whose edicts or acts may fairly be 26 said to represent official policy, inflicts the injury.” 27 Robles alleges that Berkeley police officers, at the direction of 28 the Regents, chose to withhold their aid to the attendees of the It is well-established that “a 10 Monell v. Dep’t of Id. event due to the officers’ animus against those who do not 2 subscribe to their “ultra-leftist, radical philosophies.” 3 at 3-4 (quoting Complaint ¶¶ 25, 27-42). 4 alternative reasons for the Berkeley police officers’ actions: 5 they either followed the direction of the Regents or had personal 6 animus against the event participants. 7 Berkeley implemented a custom or policy that caused Robles’ 8 constitutional injury. 9 United States District Court Northern District of California 1 deliberately indifferent to the fact that training or supervision Opp. Robles gives two Neither shows that Nor does Robles allege that Berkeley was 10 was required to prevent constitutional violations. 11 Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 407 (1997). 12 Accordingly, Robles’ first and second claims must be dismissed. Bd. of Cty. 13 B. 14 Berkeley contends that Robles did not present her state law Government Tort Claims Act 15 claims to the city prior to filing them in federal court, and 16 thus did not administratively exhaust her claims. 17 California Tort Claims Act, “a plaintiff must timely file a claim 18 for money or damages with the public entity” before bringing suit 19 against that entity.” 20 County (Bodde), 32 Cal. 4th 1234, 1237 (2004) (citing Cal. Gov. 21 Code § 900 et seq.). 22 from bringing suit against that entity.” 23 this is not only a procedural requirement, but “a condition 24 precedent to plaintiff’s maintaining an action against 25 defendant,” the plaintiff must plead compliance with this 26 condition precedent in her complaint. 27 28 Under the California v. Superior Court of Kings “The failure to do so bars the plaintiff Id. Moreover, because Id. at 1240. Robles does not contest that she did not comply with the California Tort Claims Act. Instead, she argues that she was not 11 required to do so because it would have been futile. 2 plaintiff need not pursue administrative remedies where the 3 agency’s decision is certain to be adverse.” 4 San Diego, 184 Cal. App. 4th 1422, 1430 (2010). 5 Robles, it would have been futile to seek administrative relief 6 because a “favorable decision would force BPD to admit that they 7 willfully ignored their sworn duties and withheld their services 8 based on political and other biases.” 9 United States District Court Northern District of California 1 insufficient to establish application of the futility exception, 10 which requires a plaintiff to show “that the agency has declared 11 what its ruling will be on a particular case.” 12 App. 4th at 1430 (internal quotation marks and brackets omitted). 13 Robles does not allege that Berkeley ever declared that it would 14 reject her claims. 15 claims cannot also serve as Berkeley’s rejection of those same 16 claims. 17 Robles’ state law claims against Berkeley must be dismissed. “A Howard v. Cty. of According to Opp. at 5. This is Howard, 184 Cal. Berkeley’s actions giving rise to Robles’ Thus, the futility exception does not apply here and 18 C. 19 Berkeley correctly contends that Robles’ twelfth claim, for Injunctive Relief Claim 20 injunctive relief, is improper because injunctive relief is a 21 remedy, not a cause of action. 22 Capital, Inc., 595 F. App’x 680, 684 (9th Cir. 2014). 23 Accordingly, it must be dismissed. 24 Ajetunmobi v. Clarion Mortg. In sum, all of Robles’ claims against Berkeley must be 25 dismissed. 26 second claims to attempt to state a claim for Monell liability. 27 Because Robles concedes that she did not present her claims to 28 the city pursuant to the California Tort Claims Act, and the The Court grants Robles leave to amend her first and 12 1 Court has already found that it would not have been futile to do 2 so, amendment of her sixth, seventh, and tenth claims would 3 appear to be futile. Thus, the Court will not grant leave to 4 amend these claims.2 The Court also will not grant leave to amend 5 the twelfth claim for injunctive relief because amendment would 6 be futile. 7 III. Mirabdal’s Motion to Dismiss or Strike A. 9 United States District Court Northern District of California 8 Mirabdal asserts that the complaint fails sufficiently to Motion to Dismiss 10 plead the assault, battery, and Bane Act claims asserted against 11 her. 12 refer to Mirabdal are as follows: 13 14 15 16 17 18 19 20 21 22 The only factual allegations in the complaint that directly 62. Mirabdal was also present at the Milo Yiannopoulos event. 63. Mirabdal is a member of the radical American, left wing, anti-Trump, non-profit organization funded by George Soros, ANTIFA, and carried out the assault on Plaintiff Robles at the direction of ANTIFA and in concert with each and every Defendant. 64. After Mirabdal and several unknown assailants surrounded Plaintiff Robles combatively, Mirabdal shined a flashlight aggressively in Plaintiff Robles’ face, blinding Plaintiff Robles and placing her in fear and apprehension of harm. 65. Mirabdal further beat peaceful Milo Yiannopoulos supporters with a wooden sign post during the UC Berkeley riot. In short, Robles alleges only that Mirabdal “surrounded” her 23 “combatively” and “shined a flashlight aggressively” in her face, 24 “blinding” her and “placing her in fear and apprehension of 25 26 27 28 2 Robles may, however, seek leave to amend if she can allege new facts showing compliance with the California Tort Claims Act. Cf. California, 32 Cal. 4th at 1243-44 (discussing mechanisms to present a late claim). 13 1 2 3 harm.” 1. Battery In California, the elements of battery are: “(1) defendant touched plaintiff, or caused plaintiff to be touched, with the 5 intent to harm or offend plaintiff; (2) plaintiff did not consent 6 to the touching; (3) plaintiff was harmed or offended by 7 defendant’s conduct; and (4) a reasonable person in plaintiff's 8 position would have been offended by the touching.” 9 United States District Court Northern District of California 4 City & Cty. of San Francisco, 258 F. Supp. 3d 977, 998 (N.D. Cal. 10 11 Lawrence v. 2017) (quoting So v. Shin, 212 Cal. App. 4th 652, 669 (2013)). Mirabdal contends that the complaint fails to state a claim 12 for battery because it does not allege that Mirabdal actually 13 touched Robles. 14 directly touch the plaintiff; rather, “any forcible contact 15 brought about by an object or substance thrown or launched or set 16 in motion by a defendant” could satisfy the touch requirement. 17 Inter-Ins. Exch. of Auto. Club of S. Cal. v. Lopez, 238 Cal. App. 18 2d 441, 445 (1965). 19 caused the flashlight’s beam to “touch” Robles. 20 Robles responds that a defendant need not Robles’ theory of liability is that Mirabdal Robles’ theory appears to raise an issue of first 21 impression: whether shining a light beam at someone constitutes 22 touching sufficient to satisfy the first element of battery under 23 California law. 24 “particulate matter,” has the physical properties capable of 25 making contact. 26 Communications, 92 Ohio App. 3d 232, 235 (1994). 27 argues, however, that light, unlike smoke, is intangible. 28 further argues that tort law “has long distinguished between Courts have held that tobacco smoke, as See, e.g., Leichtman v. WLW Jacor 14 Mirabdal She 1 tangible and intangible invasions and has deemed invasions by 2 light to be the latter.” 3 (2d Cir. 2008). 4 noise or vibrations” -- i.e., intangible invasions -- “across or 5 onto the land of another.” 6 In re WorldCom, Inc., 546 F.3d 211, 219 Thus, “it is not trespass to project light, Id. The Court does not find Mirabdal’s distinction between light and smoke to be persuasive. 8 context of criminal battery that common-law battery may be 9 United States District Court Northern District of California 7 accomplished by using an intangible substance, such as light. The Supreme Court has stated in the 10 See United States v. Castleman, 134 S. Ct. 1405, 1414–15 (2014) 11 (“‘[A] battery may be committed by administering a poison or by 12 infecting with a disease, or even by resort to some intangible 13 substance,’ such as a laser beam.”). 14 A Virginia Court of Appeals case considering a similar issue 15 is instructive. 16 whether shining a laser at someone constitutes touching for the 17 purpose of the crime of battery. 18 There, the court noted: 19 20 21 22 23 24 25 26 In Adams v. Virginia, the court considered 33 Va. App. 463, 469 (2000). Because substances such as light or sound become elusive when considered in terms of battery, contact by means of such substances must be examined further in determining whether a touching has occurred. Such a test is necessary due to the intangible nature of those substances and the need to limit application of such a principle (touching by intangible substances) to reasonable cases. Because the underlying concerns of battery law are breach of the peace and sacredness of the person, the dignity of the victim is implicated and the reasonableness and offensiveness of the contact must be considered. Otherwise, criminal convictions could result from the routine and insignificant exposure to concentrated energy that inevitably results from living in populated society. 27 Id. at 469-70. 28 determining whether a battery has occurred, contact by an Accordingly, the court held that “for purposes of 15 1 intangible substance such as light must be considered in terms of 2 its effect on the victim” and “to prove a touching, the evidence 3 must prove that the substance made objectively offensive or 4 forcible contact with the victim’s person resulting in some 5 manifestation of a physical consequence or corporeal hurt.” 6 at 470. 7 Id. The same reasoning applies to the tort of battery, which should be limited to reasonable cases. 9 United States District Court Northern District of California 8 here was effected by an intangible substance, light, the Court 10 will closely scrutinize whether the substance “made objectively 11 offensive or forcible contact with the victim’s person resulting 12 in some manifestation of a physical consequence or corporeal 13 hurt,” which goes to the third and fourth elements of battery. 14 See id. 15 cause “some manifestation of physical consequence or corporeal 16 hurt”; for example, a high-intensity laser directed at a person’s 17 eye could cause lasting physical harm to the eye. 18 intangible substance causes no physical harm, however, it is 19 unlikely to be offensive in a reasonably objective way. 20 Thus, because the contact It is conceivable that an intangible substance could Where an Here, Robles alleges that Mirabdal shined a flashlight beam 21 at her, “blinding” her. 22 such that she suffered serious, permanent physical eye injury, 23 then that would undoubtedly constitute physical harm, as Robles 24 suggests. 25 figurative rather than literal. 26 plead that she was harmed by the contact. 27 battery claim must be dismissed with leave to amend. Opp at 4. Complaint ¶ 64. If Robles was “blinded” However, this allegation appears to be As a result, Robles has not 28 16 Accordingly, Robles’ 2. 1 Assault In California, a claim for assault requires a plaintiff to 2 show: “(1) defendant acted with intent to cause harmful or 3 offensive contact, or threatened to touch plaintiff in a harmful 4 or offensive manner; (2) plaintiff reasonably believed she was 5 about to be touched in a harmful or offensive manner or it 6 reasonably appeared to plaintiff that defendant was about to 7 carry out the threat; (3) plaintiff did not consent to 8 defendant’s conduct; (4) plaintiff was harmed; and United States District Court Northern District of California 9 (5) defendant’s conduct was a substantial factor in causing 10 plaintiff’s harm.” Lawrence, 258 F. Supp. 3d at 998 (quoting So, 11 212 Cal. App. 4th at 668–69). 12 Mirabdal contends that the complaint does not allege that 13 she intentionally threatened to touch Robles in a harmful or 14 offensive manner, nor does it allege that Robles reasonably 15 believed she was about to be touched in a harmful or offensive 16 manner or that it reasonably appeared to her that Robles was 17 about to carry out the threat. Robles responds that the 18 complaint alleges Mirabdal aggressively shined a flashlight in 19 her eyes and that Mirabdal, along with others, “surrounded” her 20 “combatively.”3 These allegations do not, however, show that 21 Mirabdal committed a “demonstration of an unlawful intent by one 22 person to inflict immediate injury on the person of another 23 then present.” Plotnik v. Meihaus, 208 Cal. App. 4th 1590, 1603– 24 04 (2012). In Plotnik, defendants approached the plaintiff 25 26 3 27 28 Robles’ allegation that Mirabdal beat other individuals with a wooden sign post is inapposite because Robles does not contend that Mirabdal did so in a way that threatened Robles. 17 1 “aggressively” and threatened to beat and kill him. 2 The court held that, while the defendants’ “actions and words 3 were aggressive and threatening,” they did not commit an act that 4 “could or was intended to inflict immediate injury on Plotnik.” 5 Id. (internal punctuation and brackets omitted). 6 did not display a weapon, take a swing at him, or otherwise 7 attempt to touch him. 8 United States District Court Northern District of California 9 Id. at 1604. The defendants Id. The same is true here. Robles’s allegations do not establish that Mirabdal committed an act that could or was 10 intended to inflict immediate injury on Robles. 11 alleged acts surrounding Robles “combatively” and shining a 12 flashlight in her face were not intended to inflict immediate 13 injury on Robles. 14 Moreover, as discussed above, Robles has not established that 15 shining a flashlight at her constitutes harmful contact or 16 contact that is offensive in an objectively reasonably way. 17 follows that Mirabdal’s acts leading up to shining the flashlight 18 at Robles cannot constitute an act with intent to cause harmful 19 or offensive contact, or a threat to touch Robles in a harmful or 20 offensive manner. 21 to amend. 22 23 3. Mirabdal’s Nor were those acts threats to do so. It Thus, this claim must be dismissed with leave Bane Act The Bane Act authorizes a civil action for damages, 24 injunctive relief, and other appropriate equitable relief against 25 a person who “interferes by threat, intimidation, or coercion, or 26 attempts to interfere by threat, intimidation, or coercion, with 27 the exercise or enjoyment by any individual or individuals of 28 rights secured by the Constitution or laws of the United States, 18 1 or of the rights secured by the Constitution or laws of this 2 state.” 3 intended to address only egregious interferences with 4 constitutional rights, not just any tort.” 5 Los Angeles, 203 Cal. App. 4th 947, 959 (2012). 6 interference with a constitutional right must itself be 7 deliberate or spiteful.” 8 United States District Court Northern District of California 9 Cal. Civ. Code § 52.1(a) and (b). The Bane Act “was Shoyoye v. Cty. of “The act of Id. Robles alleges that Mirabdal’s acts of surrounding her and thus preventing her escape and shining a flashlight at her 10 interfered with her right to assemble peacefully. 11 challenges that the allegations involving herself do not rise to 12 the level of “threat, intimidation, or coercion” sufficient to 13 state a claim under the Bane Act. 14 supporting her argument. 15 must be denied. Mirabdal But Mirabdal cites no case Mirabdal’s motion to dismiss this claim 16 B. 17 The California anti-SLAPP statute provides for a “special Motion to Strike 18 motion to strike” for a “cause of action against a person arising 19 from any act of that person in furtherance of the person’s right 20 of petition or free speech,” “unless the court determines that 21 the plaintiff has established that there is a probability that 22 the plaintiff will prevail on the claim.” 23 § 425.16. 24 ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 25 973 (9th Cir. 1999). 26 Cal. Code Civ. Proc. The anti-SLAPP statute applies in federal court. U.S. To resolve an anti-SLAPP motion, the court engages in a two- 27 step process. 28 has made a threshold showing that the challenged cause of action “First, the court decides whether the defendant 19 1 is one arising from protected activity.” 2 v. LaMarche, 31 Cal. 4th 728, 733 (2003). 3 burden to show that her acts were “taken in furtherance of [her] 4 right of petition or free speech under the United States or 5 California Constitution in connection with a public issue.” 6 “If the court finds such a showing has been made, it then 7 determines whether the plaintiff has demonstrated a probability 8 of prevailing on the claim.” United States District Court Northern District of California 9 Jarrow Formulas, Inc. The defendant has the Id. Id. Mirabdal asserts that she was engaging in a protected 10 activity, protesting against Yiannopoulos. 11 the anti-SLAPP statute provides for four types of protected 12 activity. 13 Robles or surrounding her combatively, was not a written or oral 14 statement, and so it does not qualify under subsections one 15 through three, leaving only the possibility of subsection four. 16 § 425.16(e). 17 at Robles or surrounding her combatively constitutes “conduct in 18 furtherance of the exercise of the constitutional right of 19 petition or the constitutional right of free speech in connection 20 with a public issue or an issue of public interest.” 21 Civ. Proc. § 425.16(e). 22 burden of showing that she engaged in a protected activity and 23 her motion must be denied. 24 Section 425.16(e) of Mirabdal’s alleged conduct, shining a flashlight at Mirabdal does not explain how shining a flashlight Cal. Code As a result, she has not satisfied her CONCLUSION 25 The Court GRANTS Berkeley’s motion to dismiss (Docket No. 26 11), GRANTS the Regents’ motion to dismiss (Docket No. 16), and 27 GRANTS IN PART Mirabdal’s motion to dismiss or strike (Docket No. 28 43). Robles may file an amended complaint as permitted by this 20 1 2 3 4 order within twenty-one days. Robles shall file proof of service within fourteen days of this order. IT IS SO ORDERED. 5 6 Dated: June 4, 2018 CLAUDIA WILKEN United States District Judge 7 8 United States District Court Northern District of California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21