Our Watch With Tim Thompson v. Bonta

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 OUR WATCH WITH TIM THOMPSON, No. 2:23-cv-00422-DAD-DB

12 Plaintiff,

13 v. ORDER GRANTING DEFENDANT’S

MOTION TO DISMISS PLAINTIFF’S

14 ROB BONTA, SECOND AMENDED COMPLAINT AND

CLOSING THIS CASE

15 Defendant.

(Doc. Nos. 28, 30)

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17 This matter came before the court on October 17, 2023 for a hearing on defendant’s

18 motion to dismiss plaintiff’s second amended complaint pursuant to Rule 12(b)(1) and 12(b)(6) of

19 the Federal Rules of Civil Procedure. (Doc. No. 28.) Attorney Bethany Onishenko appeared by

20 video on behalf of plaintiff. Deputy Attorney General Nimrod Elias appeared by video on behalf

21 of defendant. For the reasons explained below, defendant’s motion will be granted.

22 BACKGROUND

23 Plaintiff Our Watch with Tim Thompson (“Our Watch”), an advocacy organization

24 “dedicated to protecting family and parental rights in California,” brought this action against the

25 Attorney General of California to challenge the constitutionality of California Senate Bill 107

26 (“SB 107”), a state law pertaining to gender-affirming mental health care. (Doc. No. 25 at ¶ 8.)

27 On July 18, 2023, the court issued an order granting defendant’s motion to dismiss

28 plaintiff’s first amended complaint (“FAC”), with leave to amend. (Doc. No. 22.) In that order,

1 the court detailed the legal standards for Article III organizational standing and identified several

2 deficiencies in plaintiff’s allegations, which fell short of satisfying those standing requirements.

3 (Id.) Because the court found that plaintiff lacked standing to bring this action against defendant,

4 the court did not address the parties’ 12(b)(6) arguments in that order. (Id. at 20.)

5 On August 1, 2023, plaintiff filed the operative second amended complaint (“SAC”),

6 bringing the same three claims under 42 U.S.C. § 1983 that it had brought in the FAC:

7 (1) violation of the Due Process Clause of the Fourteenth Amendment; (2) violation of the right to

8 familial association under the First and Fourteenth Amendments; and (3) violation of the Full

9 Faith and Credit Clause of Article IV of the U.S. Constitution. (Doc. No. 25.) The substantive

10 allegations as to these claims remain the exact same in the SAC as they were in the FAC.

11 (Compare Doc. No. 10 with Doc. No. 25.) Accordingly, the court incorporates by reference

12 herein the analysis of those allegations and the background section contained in its July 18, 2023

13 order. (Doc. No. 22 at 1–5.)

14 The only changes that plaintiff made between the FAC and the SAC are modifications to

15 its allegations made in seven paragraphs under the heading “Parties–Plaintiffs.” (Doc. No. 25 at

16 4–5; SAC at ¶¶ 11–17.) The changes include the following. In the SAC, plaintiff no longer

17 alleges that “SB 107 conflicts with Our Watch’s mission . . . by stripping parents of custody.”

18 (FAC at ¶ 12.) Plaintiff also no longer alleges that it is “committed to protecting . . . religious

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1 liberty, and the right to life across California.” (FAC at ¶ 11.)1 Instead, plaintiff alleges in its

2 SAC that Our Watch’s “mission is to restore Christian-Judeo values in government and

3 education,” and it “is committed to tackling major cultural issues that violate Chistian-Judeo

4 values.” (SAC at ¶¶ 11–12.) Specifically, Our Watch now alleges that it “tackles these issues by

5 hosting speakers at church and on its podcast, organizing events and conferences, sending letters

6 to elected officials, organizing rallies, and researching issues that affect its mission and members,

7 who are primarily comprised of Christians and parents.” (SAC at ¶ 12.) Plaintiff also alleges that

8 its “members look to Our Watch to help them get involved in local and state-wide advocacy,” and

9 it “provides research on upcoming statewide bills and local races—issues that are important to

10 Our Watch’s members—and provides them with resources to get involved with legislative

11 advocacy,” including “connect[ing] them with other organizations who may be scheduling rallies

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13 1 In the SAC, plaintiff also no longer alleges the following paragraphs which were included in

the FAC:

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Since the enactment of SB 107, Our Watch has diverted resources

15 from its other focus areas like critical race theory and abortion

rights to counteract the harms to parental rights resulting from SB

16 107. The organization has implemented new educational outreach

programs both inside and outside of California and even funded de-

17 transitioning teenagers to come on the organization’s podcast to

speak on the issue.

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Our Watch has also diverted resources, so it can reach parents and

19 churches in other states through its podcast and literature.

Specifically, Our Watch has hired individuals to warn parents and

20 churches in California and outside of California about the

devastating effects of SB 107 and to explain how parents and

21 churches can protect their children.

22 SB 107 was the primary catalyst that prompted Our Watch to focus

nearly exclusively on educating parents and churches about

23 transgender issues and the effect on parental rights. The bill has

caused Our Watch to divert time and attention from its other focus

24 areas and activities like legislative advocacy. Thus, Our Watch is

not just continuing with normal business. Although counteracting

25 SB 107 aligns with Our Watch’s mission, the bill has caused Our

Watch to shift its focus from education of California residents to

26 education of both in state and out of state residents. The bill has

also caused Our Watch to divert time and attention from other

27 issues, causes, and activities that align with its mission.

28 (FAC at ¶¶ 13–15.)

1 and protests and provides them with vital information on proposed bills and candidates through a

2 biblical vantage point.” (SAC at ¶¶ 12–13.) The SAC also includes the following new

3 allegations:

4 Although Our Watch has been committed to addressing the issue of

transgenderism through its podcast, educational materials (i.e.,

5 newsletter), and legislative advocacy, transgenderism is now a more

prominent focal point in its day-to-day operations. SB 107 was the

6 primary catalyst that prompted Our Watch to divert its attention to

transgender issues because it received numerous inquiries and

7 concerns from members across the state of California and country,

including parents. The bill’s passage prompted the need to educate

8 parents and churches about the devasting effects of SB 107 and how

parents and the church can protect children.

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Specifically, Our Watch has diverted resources, such as staff time

10 and money, from its local issues to address the nationwide effects

of SB 107. It now spends less time and money on local issues

11 affecting parents like school policies and topics like critical race

theory because it is a small organization with small resources. It

12 has diverted resources to address SB 107 by preparing written

educational materials and hosting conferences and online training.

13 The online trainings require staff to divert their attention from the

local issues to prepare for the online trainings, conduct research,

14 and coordinate speakers who can discuss the effects of SB 107,

such as legislators, teenagers who have de-transitioned, and medical

15 professionals.

16 Our Watch also plans to expend money on conferences to connect

key stakeholders who are also fighting against the devastating

17 effects of SB 107, such as organizations, ministries, politicians, and

parents. The conferences will require Our Watch to divert

18 resources, such as staff time and money, from its locally driven

events and conferences. Like the online training, the conferences

19 will help Our Watch educate key stakeholders on how to combat

SB 107 and protect children. The conferences will include speakers

20 like medical professionals, parents, legislators, and teenagers who

have de-transitioned.

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22 (SAC at ¶¶ 15–17.)

23 On September 5, 2023, defendant filed the pending motion to dismiss plaintiff’s SAC

24 pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that

25 plaintiff still fails to satisfy Article III organizational standing requirements and to state a

26 cognizable claim. (Doc. No. 28.) Plaintiff filed its opposition to the pending motion on

27 September 26, 2023, along with a request that the court take judicial notice of the California

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1 Assembly Committee on Judiciary Analysis of SB 107, Issued June 8, 2022.2 (Doc. Nos. 29, 30).

2 On October 10, 2023, defendant filed his reply in support of the pending motion. (Doc. No. 31.)

3 LEGAL STANDARD3

4 A. Motion to Dismiss Pursuant to Rule 12(b)(1)

5 “Federal courts are courts of limited jurisdiction and are presumptively without

6 jurisdiction over civil actions.” Howard Jarvis Taxpayers Ass’n v. Cal. Secure Choice Ret. Sav.

7 Program, 443 F. Supp. 3d 1152, 1156 (E.D. Cal. 2020) (citing Kokkonen v. Guardian Life Ins.

8 Co., 511 U.S. 375, 377 (1994)), aff’d, 997 F.3d 848 (9th Cir. 2021). Federal courts “possess only

9 that power authorized by Constitution and statute, which is not to be expanded by judicial

10 decree.” Kokkonen, 511 U.S. at 377 (internal citations omitted). Subject matter jurisdiction is

11 required; it cannot be forfeited or waived. Howard Jarvis Taxpayers Ass’n, 443 F. Supp. 3d at

12 1156. Indeed, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the

13 court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

14 Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a party may

15 “challenge a federal court’s jurisdiction over the subject matter of the complaint.” Nat’l Photo

16 Grp., LLC v. Allvoices, Inc., No. 3:13-cv-03627-JSC, 2014 WL 280391, at *1 (N.D. Cal. Jan. 24,

17 2014). “A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the

18 challenger asserts that the allegations contained in a complaint are insufficient on their face to

19 invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)

20 (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)).

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2 Having reviewed plaintiff’s request for judicial notice, which defendant does not oppose, the

23 court finds that the California Assembly Committee on Judiciary Analysis of SB 107, Issued June

8, 2022, is the proper subject of judicial notice and thus will grant plaintiff’s request. See Fed. R.

24 Evid. 201(b)–(c); Anderson v. Holder, 673 F.3d 1089, 1094 (9th Cir. 2012) (“Legislative history

is properly a subject of judicial notice.”); City & Cnty. of San Francisco v. Garland, 42 F.4th

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1078, 1083 n.3 (9th Cir. 2022) (taking judicial notice of a document obtained from an official

government website).

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27 3 This order does not address the legal standard governing consideration of motions to dismiss

brought under Rule 12(b)(6) because, as explained below, the court does not reach defendant’s

28 12(b)(6) arguments.

1 Here, because defendant argues that the allegations in plaintiff’s SAC are insufficient for

2 the invocation of federal jurisdiction over plaintiff’s claims, defendant mounts a facial attack

3 under Rule 12(b)(1).

4 A party making a facial attack does not submit supporting evidence with the motion

5 because jurisdiction is challenged based solely on the pleadings. Howard Jarvis Taxpayers Ass’n,

6 443 F. Supp. 3d at 1156; see also Diva Limousine, Ltd. v. Uber Techs., Inc., 392 F. Supp. 3d

7 1074, 1084 (N.D. Cal. 2019) (“[C]ourts do not consider evidence outside the pleadings when

8 deciding a facial attack.”) (citation omitted). “The district court resolves a facial attack as it

9 would a motion to dismiss under Rule 12(b)(6): [a]ccepting the plaintiff’s allegations as true and

10 drawing all reasonable inferences in the plaintiff’s favor, the court determines whether the

11 allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co.,

12 749 F.3d 1117, 1121 (9th Cir. 2014). However, the court need not assume the truth of legal

13 conclusions cast in the form of factual allegations. Warren v. Fox Family Worldwide, Inc., 328

14 F.3d 1136, 1139 (9th Cir. 2003).

15 B. Article III Standing

16 “[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the

17 threshold requirement imposed by Article III of the Constitution by alleging an actual case or

18 controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983); see also Matter of East

19 Coast Foods, Inc., 66 F.4th 1214, 1218 (9th Cir. 2023) (Because “standing is an ‘essential and

20 unchanging’ requirement . . . a party must establish an Article III case or controversy before we

21 exert subject matter jurisdiction.”) (citations omitted); City of Oakland v. Lynch, 798 F.3d 1159,

22 1163 (9th Cir. 2015) (“A suit brought by a plaintiff without Article III standing is not a ‘case or

23 controversy,’ and Article III federal courts lack subject matter jurisdiction over such suits.”)

24 (quoting Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004)). An actual case or

25 controversy will be held to exist when a plaintiff establishes standing. Lujan v. Defs. of Wildlife,

26 504 U.S. 555, 560 (1992).

27 “[S]tanding requires that (1) the plaintiff suffered an injury in fact, i.e., one that is

28 sufficiently ‘concrete and particularized’ and ‘actual or imminent, not conjectural or

1 hypothetical,’ (2) the injury is ‘fairly traceable’ to the challenged conduct, and (3) the injury is

2 ‘likely’ to be ‘redressed by a favorable decision.’” Bates v. United Parcel Serv., Inc., 511 F.3d

3 974, 985 (9th Cir. 2007) (en banc) (citing Lujan, 504 U.S. at 560–61). “Standing must be shown

4 with respect to each form of relief sought, whether it be injunctive relief, damages or civil

5 penalties.” Id. “[T]o establish standing to pursue injunctive relief . . . [plaintiff] must

6 demonstrate a real and immediate threat of repeated injury in the future.” Chapman v. Pier 1

7 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (internal quotation omitted).

8 “To determine whether organizational standing requirements have been satisfied, [courts]

9 ‘conduct the same inquiry as in the case of an individual: Has the plaintiff alleged such a

10 personal stake in the outcome of the controversy as to warrant his invocation of federal-court

11 jurisdiction?’” E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 662 (9th Cir. 2021) (quoting

12 Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982)). “Organizations can assert

13 standing on behalf of their own members, or in their own right.” E. Bay Sanctuary Covenant, 993

14 F.3d at 662 (internal citations omitted); see also Rodriguez v. City of San Jose, 930 F.3d 1123,

15 1134 (9th Cir. 2019) (“[A]bsent a member with standing, . . . an organizational plaintiff ‘may

16 have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever

17 rights and immunities the association itself may enjoy.’”) (quoting Am. Fed’n of Gov’t Emps.

18 Local 1 v. Stone, 502 F.3d 1027, 1032 (9th Cir. 2007)).

19 Here, plaintiff does not assert standing on behalf of its members and instead asserts only

20 that it has standing to bring this action in its own right. (See, e.g., Doc. No. 29 at 18) (explaining

21 that “Our Watch is asserting its own legal rights via organizational standing”).

22 An organization has standing on its own behalf if it can show: (1) that the defendant’s

23 actions have frustrated its mission; and (2) that it has spent resources counteracting that

24 frustration. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013); see also E. Bay

25 Sanctuary Covenant, 993 F.3d at 663. “Of course, organizations cannot ‘manufacture the injury

26 by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise

27 would not affect the organization at all[.]’” E. Bay Sanctuary Covenant, 993 F.3d at 663 (quoting

28 La Asociacion de Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir.

1 2010)). Rather, an organizational plaintiff must “show that it would have suffered some other

2 injury if it had not diverted resources to counteracting the problem.” E. Bay Sanctuary Covenant

3 v. Garland, 994 F.3d 962, 974 (9th Cir. 2020) (quoting La Asociacion, 624 F.3d at 1088). Thus,

4 “[a]n organization may sue only if it was forced to choose between suffering an injury and

5 diverting resources to counteract the injury.” La Asociacion, 624 F.3d at 1088 n.4 (emphasis

6 added).

7 ANALYSIS

8 In the pending motion, defendant argues that plaintiff’s SAC must be dismissed pursuant

9 to Rule 12(b)(1) for the same reasons that the court dismissed plaintiff’s FAC; namely,

10 “[p]laintiff lacks Article III standing because SB 107 did not impede any of plaintiff’s

11 organizational activities or functions.” (Doc. No. 28 at 17.) Defendant contends that plaintiff has

12 still not met the requirements for organizational standing because it “has not identified any actual

13 injury—in the form of a real-world impediment to plaintiff’s activities—caused by SB 107.” (Id.

14 at 18.) Defendant acknowledges that the SAC specifies some examples of plaintiff’s activities

15 (hosting speakers, organizing events and conferences, sending letters to elected officials,

16 organizing rallies, and researching issues), but defendant argues that this additional detail is

17 insufficient to satisfy the frustration-of-mission requirement because “plaintiff does not—and

18 cannot—allege that any of these activities have been impaired in any way by SB 107.” (Id. at 18–

19 19.) Defendant emphasizes that “[n]one of plaintiff’s services, activities, functions, or funding

20 have been impaired in any way by SB 107,” and “plaintiff’s philosophical disagreement with SB

21 107 and its voluntary choice to spend money opposing it ‘is not a golden ticket to obtaining

22 Article III standing.’” (Id. at 8) (quoting Doc. No. 22 at 19).

23 Defendant further argues that plaintiff still has not alleged facts satisfying the forced-

24 diversion-of-resources requirement, even though the SAC now alleges that Our Watch “has

25 diverted resources, such as staff time and money, from its local issues to address the nationwide

26 effects of SB 107” and “now spends less time and money on local issues affecting parents like

27 school policies and topics like critical race theory because it is a small organization with small

28 resources.” (Doc. No. 28 at 19.) Defendant contends that these allegations are insufficient for the

1 same reason that the court found the allegations of plaintiff’s FAC to be insufficient for purposes

2 of organizational standing: these allegations provide “no basis upon which to conclude that

3 plaintiff’s alleged diversion of resources was in any way forced.” (Id. at 19–20) (quoting Doc.

4 No. 22 at 13). Moreover, defendant notes that some of plaintiff’s allegations of diversion of

5 resources are inadequate because plaintiff alleges planned expenditures in the future, e.g.,

6 plaintiff “plans to expend money on conferences”; that is, the diversion has not yet even occurred

7 according to plaintiff’s own allegations. (Id. at 19, n. 18.) Defendant stresses that plaintiff has

8 now had three attempts to sufficiently allege its standing to bring this action, and plaintiff has

9 persistently failed “to identify any injury that it would have suffered ‘if it had not diverted

10 resources to counteracting the problem.’” (Id. at 20) (quoting La Asociacion, 624 F.3d at 1088).

11 The court is persuaded by defendant’s arguments, many of which closely track the court’s

12 analysis and conclusions set forth in its July 18, 2023 order dismissing plaintiff’s FAC due to lack

13 of Article III standing. Plaintiff’s opposition to the pending motion, on the other hand, largely

14 ignores the court’s prior analysis and doubles down on its conclusory arguments. At the hearing

15 on the pending motion, plaintiff’s counsel merely reiterated the arguments that plaintiff advanced

16 in its opposition brief and maintained that, under its view of organizational standing requirements,

17 to show that its organizational activities have been impeded by SB 107, plaintiff need only allege

18 that it is spending less money on other efforts. Plaintiff is incorrect as a matter of law.

19 In its opposition, plaintiff reasserts (often verbatim) the same arguments it had presented

20 in its opposition to the prior motion to dismiss and that the court already addressed and rejected in

21 its order granting that prior motion to dismiss. (Doc. No. 29 at 15–16.)4 As for its frustration of

22 mission, plaintiff again merely argues that “the diversion of resources to counteract the frustration

23 of Our Watch’s mission is itself the actual or imminent injury to Our Watch.” (Doc. No. 29 at

24 15.)

25 4 Relatedly, plaintiff reasserts arguments that are based on allegations that were indeed omitted

from the SAC. For example, plaintiff again contends that “SB 107 impaired Our Watch’s mission

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by allowing the State of California to remove children from parental custody in violation of the

27 rights Our Watch seeks to protect” (Doc. No. 29 at 16), but plaintiff no longer alleges that “SB

107 conflicts with Our Watch’s mission . . . by stripping parents of custody,” which plaintiff had

28 alleged in the FAC, (FAC at ¶ 12).

1 However, addressing this very argument in its prior order, the court had stated:

2 While the Ninth Circuit has held that “[a]n organization suing on its

own behalf can establish an injury when it suffered both a diversion

3 of its resources and a frustration of its mission,” plaintiff

conveniently glosses over the well-established corollary to this

4 principle: that such an organizational plaintiff “may only sue if it

was forced to choose between suffering an injury and diverting

5 resources to counteract the injury.” La Asociacion, 624 F.3d at

1088 & 1088 n.4 (internal quotation marks omitted). It would

6 appear obvious that to hold otherwise “would effectively nullify the

constitutional requirements for standing” because it would, in

7 essence, allow an organization to manufacture standing simply by

perfunctorily assigning itself a broad organizational mission and

8 “investigating conduct or starting a new campaign against someone

who frustrates [that] general mission.” In Def. of Animals, 2021

9 WL 4243391, at *4 (explaining that such an outcome “would be

inconsistent with the constitutional minimum for standing, as there

10 is no injury that is ‘fairly traceable’ to the defendant’s conduct

[because] the plaintiff’s own choice causes the injury”).

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12 (Doc. No. 22 at 17.) For this same reason, plaintiff’s argument again fails.

13 Further, in its prior order the court also explained that “plaintiff once again ignores

14 binding Ninth Circuit precedent providing that in order for such a plaintiff to have standing, that

15 organizational plaintiff must also ‘show that it would have suffered some other injury if it had not

16 diverted resources to counteracting the problem.’” (Id. at 18) (quoting La Asociacion, 624 F.3d at

17 1088). Rather than address this deficiency head on in its opposition to the pending motion,

18 plaintiff has merely copied and pasted the same paragraph from its opposition to the prior motion

19 to dismiss filed in this action. (Compare Doc. No. 29 at 15 with Doc. No. 15 at 14.)

20 Moreover, although in its opposition brief plaintiff uses the term “counteract” when

21 presenting its argument—i.e., the diversion of resources to counteract the frustration of Our

22 Watch’s mission—the SAC does not actually employ the term “counteract” at all. Nor does

23 plaintiff’s SAC use terms such as “combat” or “alleviate,” even though these three terms appear

24 in the decisions cited by the parties and the court in its prior order. For example, an

25 organizational plaintiff “may only sue if it was forced to choose between suffering an injury and

26 diverting resources to counteract the injury.” La Asociacion, 624 F.3d at 1088 (emphasis added).

27 Despite plaintiff’s characterization in its opposition brief, the allegations in the SAC use the term

28 “address,” as shown in the following allegations from the SAC:

1 • Our Watch “has had to divert organizational resources to address the effects of SB

2 107, including implementing education programs and designing and disseminating

3 literature and podcasts to reach churches and parents outside of California.” (SAC

4 at ¶ 8.)

5 • “Our Watch has diverted resources, such as staff time and money, from its local

6 issues to address the nationwide effects of SB 107.” (SAC at ¶ 16.)

7 • “It has diverted resources to address SB 107 by preparing written educational

8 materials and hosting conferences and online training.” (Id.)

9 Contrary to plaintiff’s characterization, “[a]ddressing” the effects of SB 107 is clearly not

10 synonymous with counteracting an injury caused by SB 107. Plaintiffs have simply not alleged

11 facts to show that it was forced to divert staff time and resources away from “local issues”

12 because if it had decided not to “divert” such resources, it would have suffered some other injury.

13 Plaintiff does not even attempt to explain how “addressing” the effects of SB 107 constitutes

14 “counteracting” or “combating” an injury that it would otherwise suffer.

15 Indeed, the court’s prior order explained that plaintiff needed to allege “how SB 107’s

16 enactment specifically impacts the organization’s functions” as opposed to alleging “facts

17 suggesting that its values have been undermined by SB 107.” (Doc. No. 29 at 16.) Plaintiff did

18 not meaningfully address this deficiency in the SAC either. In its opposition brief, plaintiff

19 contends that “SB 107 was the catalyst that forced Our Watch to divert its resources” (id. at 17),

20 but the allegations relied upon to support this contention do not employ the term “forced” or even

21 suggest force. Rather, plaintiff merely alleges that SB 107 “prompted” its diversion of resources:

22 SB 107 was the primary catalyst that prompted Our Watch to divert

its attention to transgender issues because it received numerous

23 inquiries and concerns from members across the state of California

and country, including parents. The bill’s passage prompted the

24 need to educate parents and churches about the devasting effects of

SB 107 and how parents and the church can protect children.

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26 (SAC at ¶ 15) (emphasis added). According to its own allegations, plaintiff’s decision to place

27 more focus and correspondingly commit more of its resources to “transgender issues” (at the

28 expense of “local issues”) was a voluntary decision—not a forced one. Plaintiff does not allege

1 what injury it would have suffered if it had instead decided to continue spending the same amount

2 of time and money on “local issues affecting parents like school policies and topics like critical

3 race theory.” (SAC at ¶ 16.) As defendant emphasizes in his reply brief, “[p]laintiff has not—

4 and cannot—point to any harm that it would have suffered from SB 107 had it not voluntarily

5 chosen to divert its resources.” (Doc. No. 31 at 5.)

6 In sum, plaintiff has again failed to adequately allege facts sufficient to satisfy the

7 established requirements for organizational standing. Accordingly, defendant’s motion to dismiss

8 plaintiff’s SAC due to plaintiff’s lack of Article III standing will be granted. Further, the court

9 finds that the granting of further leave to amend would be futile under the circumstances, given

10 that plaintiff has already been given an opportunity to amend its allegations to cure the

11 deficiencies the court had identified in its prior order, and plaintiff failed to do so.5 Thus,

12 defendant’s motion to dismiss will be granted, without leave to amend.

13 CONCLUSION

14 For the reasons stated above:

15 1. Plaintiff’s request for judicial notice (Doc. No. 30) is granted;

16 2. Defendant’s motion to dismiss plaintiff’s second amended complaint due to

17 plaintiff’s lack of Article III standing (Doc. No. 28) is granted, without leave to

18 amend;

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5 The court’s prior order noted the following with regard to leave to amend:

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The court notes that plaintiff has already amended its complaint in

21 this action once, and the court is doubtful that plaintiff will be able

to remedy the deficiencies described in this order. The court’s

22 doubts in this regard are based in part upon plaintiff’s apparent

position at the hearing on the pending motions that, in order to have

23 standing, plaintiff need not allege anything more than a vague

mission and a voluntary diversion of resources. Nonetheless, out of

24 an abundance of caution, and because defendant does not assert that

it will be unduly prejudiced by allowing plaintiff to file a second

25 amended complaint, the court will grant plaintiff leave to amend.

See Nat’l Council of La Raza, 800 F.3d at 1041 (“It is black-letter

26 law that a district court must give plaintiffs at least one chance to

amend a deficient complaint, absent a clear showing that

27 amendment would be futile.”).

28 (Doc. No. 22 at 20.)

1 3. This action is dismissed;

2 4. The Clerk of the Court is directed to close this case.

3 IT IS SO ORDERED.

* | Dated: _ April 8, 2024 Dab A. 2, sxe

5 DALE A. DROZD

‘ UNITED STATES DISTRICT JUDGE

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