Petition for Writ of Certiorari — Pasadena Republican Club, Petitioner v. Western Justice Center, et al.

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

PASADENA REPUBLICAN CLUB,

No. 20-55093

a General Purpose Political

D.C. No.

Committee, on behalf of

2:18-cv-09933-AWT-AFM

itself and its members,

OPINION

Plaintiff-Appellant,

v.

WESTERN JUSTICE

CENTER, a California

nonprofit corporation;

CITY OF PASADENA;

JUDITH CHIRLIN,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

A. Wallace Tashima, District Judge, Presiding*

Argued and Submitted December 7, 2020

Pasadena, California

Filed January 25, 2021

Before: Susan P. Graber and Carlos T. Bea, Circuit

Judges, and Jennifer A. Dorsey,** District Judge.

* A. Wallace Tashima, Circuit Judge, for the Ninth Circuit

Court of Appeals, sitting in the United States District Court, for

the Central District of California, by designation.

** The Honorable Jennifer A. Dorsey, United States District

Judge for the District of Nevada, sitting by designation.

App. 2

Opinion by Judge Bea

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

COUNSEL

Anthony T. Caso (argued), Center for Constitutional

Jurisprudence, Fowler School of Law, Chapman University, Orange, California, for Plaintiff-Appellant

William E. Thomson III (argued), Debra Wong Yang,

Dhananjay S. Manthripragada, Daniel R. Adler, and

Jason S. Kim, Gibson Dunn & Crutcher LLP, Los Angeles, California, for Defendants-Appellees Western

Justice Center and Judith Chirlin.

Dawn Cushman (argued), Jonathan A. Ross, and Carol

A. Humiston, Bradley & Gmelich LLP, Glendale, California, for Defendant-Appellee City of Pasadena.

Justin R. Sarno and Sylvia Chu, Dentons US LLP, Los

Angeles, California, for Amicus Curiae League of California Cities.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

OPINION

BEA, Circuit Judge

The restraints set forth in the United States Constitution generally bind only government actors, excluding private actors from its reach. Nearly sixty

years ago, however, the Supreme Court held that, in

certain circumstances, a private actor who leased

government property must comply with the constitutional restraints as though they were binding covenants

App. 3

written into the lease agreement itself. Although the

Court deemed the lessee to be a state actor, it reserved

this finding for the set of circumstances under which

the “State has so far insinuated itself into a position of

interdependence with [a private actor] that it must be

recognized as a joint participant in the challenged activity.” Burton v. Wilmington Parking Auth., 365 U.S.

715, 725 (1961). Indeed, the Court explicitly limited its

applicability to the “peculiar facts or circumstances

present,” cautioning that the conclusions drawn from

the case “are by no means declared as universal truths

on the basis of which every state leasing agreement is

to be tested.”1 Id. at 725-26. We, now, must revisit this

precedent and determine whether it is applicable to

the case before us.

Pasadena Republican Club (the “Club”) contracted

with Western Justice Center (“WJC”), a private nonprofit organization, to rent some space in WJC’s building for a speaking event. Shortly before the event,

however, WJC learned about the speaker’s association

with a politically active group that, as WJC explained,

holds “positions on same-sex marriage, gay adoption,

and transgender rights [that] are antithetical to [its]

values.” WJC then rescinded the rental agreement. In

1

In fact, the dissenting justices criticized the Court’s opinion

for failing to elucidate a workable standard in determining what

constitutes “state action.” See Burton, 365 U.S. at 728 (Harlan, J.,

dissenting) (“The Court’s opinion, by a process of first undiscriminatingly throwing together various factual bits and pieces and

then undermining the resulting structure by an equally vague

disclaimer, seems to me to leave completely at sea just what it is

in this record that satisfies the requirement of ‘state action.”).

App. 4

response, the Club filed a lawsuit alleging that its

First Amendment rights had been violated. The Club

claimed that WJC’s leasing arrangement with the City

of Pasadena (the “City”) constituted sufficient grounds

to bring constitutional claims against WJC, a private

§ 501(c)(3) nonprofit organization dedicated to civic improvement. Relying exclusively on Burton, the Club

filed claims against the City, WJC, and WJC’s Executive Director under 42 U.S.C. § 1983.

We reject the Club’s assertions and hold that WJC

is not a state actor for purposes of the Club’s constitutional claims. Neither the circumstances under which

WJC rehabilitated the building and acquired the lease,

nor the terms of the lease itself, convert WJC into a

state actor. Similarly, the government does not, without more, become vicariously liable for the discretionary decisions of its lessee. To apply the ruling in

Burton, the private party’s conduct of which the plaintiff complains must be inextricably intertwined with

that of the government. See Brunette v. Humane Soc’y

of Ventura Cty., 294 F.3d 1205, 1212-13 (9th Cir. 2002);

Vincent v. Trend W. Tech. Corp., 828 F.2d 563, 569 (9th

Cir. 1987). For the reasons set forth herein, we affirm

the District Court’s dismissal.

I.

BACKGROUND

A. The City acquires the Property and

leases it to WJC

In 1988, the City sought to purchase from the

United States Government real property located at

App. 5

55-85 South Grand Avenue, Pasadena, California. (the

“Property”). The purchase was contingent upon the approval of a leasing agreement between the City and

WJC for the rehabilitation and use of the Property.

Among other things, the City intended to “provide increased and improved legal services to the citizens of

Pasadena” and “provide a forum for educational research.”

In 1989, the City purchased the Property and executed an agreement to lease it to WJC (the “Lease”).2

The Lease described the relationship:

[WJC] is entering into this Lease, rather

than diretly purchasing the Premises, because [WJC] does not qualify as an organization eligible to purchase the Premises [from

the U.S. Government]. It is the intent that neither [the Pasadena Surplus Property Authority] nor the City of Pasadena shall be required

to contribute general funds to the acquisition,

restoration or renovation of the Premises, but

nothing contained herein shall be construed

as prohibiting or restricting the City against

assisting [WJC] in applying to third parties

for grants of funds to be used for restoring the

Premises. This Lease is not entered into as a

commercial transaction by either party. . . .

2

Initially, the Lease was between WJC and the Pasadena

Surplus Property Authority, a public corporation formed by the

City. It was not until 1994 that the Authority transferred the

Property to the City. For purposes of this Opinion, however, we

reference only the City.

App. 6

The Lease required WJC to pay for all costs related to

the acquisition, improvement, repair, and maintenance

of the Property. Indeed, the Lease specifically stated

that the City shall “have no obligation, in any manner

whatsoever, to repair and maintain the Premises nor

the building located thereon nor the equipment therein,

whether structural or nonstructural.”

The Lease also limited WJC’s use of the Property

to “non-profit law related functions,” including:

(i) operation of a center for the study of the

following matters: alternative dispute resolution, administration of justice, delivery of

legal services, and other legally oriented issues; (ii) providing space to non-profit entities for legal seminars, meetings, conferences,

hearing rooms, deposition rooms, arbitration

rooms, law library, research space; (iii) residential and office facilities for legal researchers and scholars and ancillary services such

as dining facilities; and (iv) for subleasing portions of the Premises to tax exempt organizations providing law related services, and for

no other purposes whatsoever.

Although the Lease required WJC to “use the [Property] for these purposes during ordinary business

hours,” it also stated that WJC was not precluded from

“using the [Property] for community meetings and

other purposes during non-business hours.” Critically,

the City asserts that it “derives no income, revenue or

other financial benefit on account of [WJC]’s rental of

meeting rooms” and “has no input or control over the

App. 7

entities to which [WJC] may rent its meeting rooms . . .

during the evening hours.”

In 1994, the City agreed to lend to WJC up to

$458,000 for further rehabilitation of the Property.

WJC has repaid those loans (and accrued interest

thereon) in full through rental payments to the City.

WJC currently pays to the City $1 per month in rent.

B. WJC rescinds the Club’s rental for the

scheduled speaking event

Prior to the planned event that gave rise to this

litigation, the Club periodically rented event space for

its meetings that occurred outside of normal business

hours. Consistent with that practice, the Club contracted with WJC to rent some space on the Property

for a speaking event to occur on April 20, 2017. Dr.

John Eastman, former dean at the Chapman University School of Law and professor of constitutional law,

was scheduled to speak during the event.

After reserving the space for April 20 but before

the event had occurred, the Club attempted to reserve

the space for an additional event to occur the following

month. The Executive Director of WJC, retired Los Angeles Superior Court Judge Judith Chirlin, informed

the Club that WJC’s Executive Committee had enacted

a new policy to “not make the [Property] available for

rental to political groups—one side or the other.” WJC

enacted this new policy “because of the heightened political rancor these days, and because it is the mission

of [WJC] to promote peaceful conflict resolution and

App. 8

reduce prejudice and intergroup conflict.” The Club

was told that WJC would honor the Club’s rental for

April 20, but would not rent to the Club thereafter.

Notwithstanding the pledge to honor its commitment, on the very afternoon of April 20, Judge Chirlin

informed the Club that WJC would not allow the

scheduled speaking event to take place on the Property

later that same evening:

It is with regret that I inform you that [the

Club] cannot use our facilities for your meeting tonight. While I knew that Prof Eastman

was a professor and author, we learned just

today that he is the President of the National

Organization for Marriage (NOM). NOM’s positions on same-sex marriage, gay adoption,

and transgender rights are antithetical to

the values of [WJC]. [WJC] exists to build a

more civil, peaceful society where differences

among people are valued. WJC works to improve campus climates with a special focus on

LGBT bias and bullying. We work to make

sure that people recognize and stop LGBT

bullying. Through these efforts we have built

a valuable reputation in the community, and

allowing your event in our facility would hurt

our reputation in the community

We will return the fee that you have paid immediately.

App. 9

C. Procedural history

In November 2018, the Club filed this action

against WJC, Judge Chirlin, and the City. Relying on

§ 1983, the Club alleges that all defendants discriminated against the Club’s political viewpoints and religious beliefs in violation of the First Amendment.

Additionally, under 42 U.S.C. § 1985(3), the Club alleges that Judge Chirlin conspired to violate the Club’s

First Amendment rights.

In May 2019, WJC and Judge Chirlin moved to

dismiss the claims under Rule 12(b)(6) of the Federal

Rules of Civil Procedure, and the City moved for summary judgment. The District Court granted both motions. For purposes of this appeal, the District Court

held that the operative complaint does not plausibly

allege that either WJC or Judge Chirlin acted “under

color of state law” pursuant to the “joint action” or

“symbiotic relationship” test found in Burton. The District Court also held that the undisputed facts show

that the City did not delegate to WJC any final policymaking authority of the City that caused the Club’s alleged constitutional violation. The Club timely appeals

from this decision.

II.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review de novo a district court’s decision to

grant a motion to dismiss. “To survive a motion to

App. 10

dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim for relief that

is plausible on its face.” Caviness v. Horizon Cmty.

Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010)

(internal quotation marks omitted). “A claim has facial

plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (internal quotation marks omitted).

We also review de novo a district court’s decision

to grant a motion for summary judgment. See Balint v.

Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en

banc). In doing so, we do not weigh the evidence but,

rather, determine whether there is a genuine issue of

material fact. See id.

III. MOTION TO DISMISS

A. The Club’s § 1983 claims against WJC

and Judge Chirlin

Title 42 U.S.C. § 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or

causes to be subjected, any citizen of the United States

. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws,

shall be liable to the party injured in an action at law”

(emphasis added). “The ultimate issue in determining

whether a person is subject to suit under § 1983 is the

same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of

App. 11

federal rights fairly attributable to the [government]?”

Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826,

835 (9th Cir. 1999) (quoting Rendell-Baker v. Kohn, 457

U.S. 830, 838 (1982)); see also Lugar v. Edmondson Oil

Co., 457 U.S. 922, 935 n.18 (1982) (noting that “conduct

satisfying the state-action requirement of the Fourteenth Amendment [also] satisfies the [§ 1983] statutory requirement of action under color of state law”).

1. State action under Burton and its

progeny

“The determination of whether a nominally private person or corporation acts under color of state law

‘is a matter of normative judgment, and the criteria

lack rigid simplicity.” Rawson v. Recovery Innovations,

Inc., 975 F.3d 742, 747 (9th Cir. 2020) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531

U.S. 288, 295-96 (2001)). Courts must engage in “sifting

facts and weighing circumstances” to answer what is

“necessarily a fact-bound inquiry.” Lugar, 457 U.S. at

939. Indeed, “[no] one fact can function as a necessary

condition across the board . . . nor is any set of circumstances absolutely sufficient.” Lee v. Katz, 276 F.3d 550,

554 (9th Cir. 2002) (quoting Brentwood Acad., 531 U.S.

at 295-96).

The Supreme Court has developed four different

tests that “aid us in identifying state action: ‘(1) public

function; (2) joint action; (3) governmental compulsion

or coercion; and (4) governmental nexus.’ ” Rawson,

975 F.3d at 747 (quoting Kirtley v. Rainey, 326 F.3d

App. 12

1088, 1092 (9th Cir. 2003)). The “[s]atisfaction of any

one test is sufficient to find state action,” but “[a]t bottom, the inquiry is always whether the defendant has

exercised power possessed by virtue of state law and

made possible only because the wrongdoer is clothed

with the authority of state law.” Id. at 747-48 (internal

citations omitted).

Here, the Club relies exclusively on the “joint action” or “symbiotic relationship” test.3 The test asks

“whether the government has so far insinuated itself

into a position of interdependence with a private entity

that the private entity must be recognized as a joint

participant in the challenged activity.” Brunette, 294

F.3d at 1210. A private entity may be considered a

state actor “only if its particular actions are ‘inextricably intertwined’ with those of the government.” Id. at

1211.

In Burton, the progenitor of this test, a state parking authority acquired land to construct a public parking garage. 365 U.S. at 718. Before construction began,

however, the parking authority learned that the anticipated revenue from the garage would not be sufficient to finance its purchase, construction, or

operations. Id. at 719. To secure additional monies, the

parking authority executed long-term leases with commercial tenants. Id. The leasing agreements required

3

We therefore need not decide if any other state-action test

applies. See Harvey v. Brewer, 605 F.3d 1067, 1078 (9th Cir. 2010)

(explaining that “a court will not pass upon a constitutional question if there is some other ground upon which the case may be

disposed”).

App. 13

the parking authority to pay the cost of the tenants’

utilities, heat, maintenance, and repairs—all of which

were paid for from public funds. Id. at 720.

The Supreme Court held that one of the tenants, a

restaurant that refused to serve customers based on

their race, was a state actor because the parking authority was a joint participant in the tenant’s operations and, thus, a joint participant in the tenant’s

discrimination. Id. at 723-25. The Court focused on

the mutual benefits conferred from the relationship:

the tenant transacted more business because its customers were afforded a convenient spot to park in the

public garage, and that convenience had an effect of

increasing the utilization (and revenue) for the garage. Id. at 724. Critically, the parking authority also

depended on the tenant’s rental payments for its financial success because the garage was not a selfsustaining facility. See id. In other words, the tenant’s

commercial operations “constituted a physically and financially integral and, indeed, indispensable part of

the State’s plan to operate its project as a self-sustaining unit.” Id. at 723-24. In all, Burton teaches us that

“substantial coordination” and “significant financial integration” between the private party and government

are hallmarks of a symbiotic relationship. Brunette,

294 F.3d at 1213.

Heeding the Supreme Court’s own instruction to

limit Burton’s holding to “the peculiar facts or circumstances present,” Burton, 365 U.S. at 725-26, we have

repeatedly distinguished Burton and declined to expand its applicability. In Vincent, for instance, we held

App. 14

that a government contractor performing maintenance

services at an Air Force base was not a state actor because “the government did not profit from [the contractor]’s alleged unconstitutional conduct.” 828 F.2d at

569-70. “While [the contractor] may have been dependent economically on its contract with the Air Force, [the

contractor] was most certainly not an indispensable element in the Air Force’s financial success.” Id. at 569.

We, therefore, found “no significant financial ‘integration’ between [the contractor] and the Air Force.” Id.;

see also Brunette, 294 F.3d at 1213-14 (holding that

there was no symbiotic relationship where a private

news company accompanied a “quasi-public” Humane

Society in executing a search warrant of a breeder’s

ranch because plaintiff failed to allege that the news

company “rendered any service indispensable to the

Humane Society’s continued financial viability”).

That is not to say that Burton is not binding precedent. Recently, in Rawson v. Recovery Innovations,

Inc., we concluded that a private nonprofit hospital

was a state actor. There, a patient sought to hold a private hospital and its doctors liable for petitioning a

state court to commit him involuntarily to hospital

custody and forcibly injecting him with antipsychotic

medications. Rawson, 975 F.3d at 747. Noting that

“Burton remains instructive,” we held that the § 1983

claims survived summary judgment because the private hospital operated its facility on the same grounds

as the state’s main psychiatric hospital. Id. at 745-46.

Not only did the private hospital lease its facility from

the state, but the grounds were “recognizable” and

App. 15

“clearly marked as a state hospital.” Id. at 756. Further entangling the two, the private hospital’s medical director was also a full-time physician at the

state hospital. Id. at 746. We considered this particular leasehold relationship only one of several factors weighing in favor of finding state action.4 We

ultimately concluded that the state had “undertaken a

complex and deeply intertwined process [with private

actors] of evaluating and detaining individuals for

long-term [involuntary] commitments, and therefore,

the state has so deeply insinuated itself into this process that [the private actors’] conduct constituted state

action.” Id. at 757 (internal quotation marks omitted)

(alterations in original).

4

Indeed, we “consider[ed] the full factual context” in Rawson, observing numerous factors weighing in favor of finding state

action, such as (1) the private hospital “exercise[d] powers traditionally held by the state” by detaining and forcibly treating Rawson to “protect[ ] both the public and Rawson himself ”; (2) the

private hospital “perform[ed] actions under which the state owes

constitutional obligations to those affected” by attempting to commit him involuntarily, thereby depriving Rawson of his liberty interests; (3) the state, through the county prosecutor, significantly

involved itself and “played an outsized role” in the private hospital’s decisionmaking to petition to commit Rawson involuntarily;

(4) the state approved the private hospital’s petition to commit

Rawson involuntarily; and (5) the private hospital was “charged

with applying state protocols and criteria in making evaluation

and [involuntary] commitment recommendations.” See Rawson,

975 F.3d at 751-56.

App. 16

2. WCJ and the City lack the significant degree of integration, dependency, and coordination that was

apparent in Burton

Applying the principles distilled from Burton and

its progeny, we cannot find state action here. First,

WJC and the City manage their operations independently of each other. In Burton, the parking authority operated a parking garage in the same building as

its commercial tenants and depended on those forprofit tenants for its initial financing and continued

viability. The parking authority relied on rental payments—the restaurant paid $28,700 per year—to defray the parking authority’s own operating expenses

because the parking garage was not a self-sustaining

facility. In contrast, the Club does not allege that WJC

helps to defray any operating expenses for the City.

Nor does the Club allege that the City performs any

City functions on the Property or that the City is responsible for any expenses related to the Property. Indeed, all expenses related to the Property are paid

directly by WJC, which is a self-sustaining organization itself. Cf. Rendell-Baker, 457 U.S. at 842-43 (noting

the salience in Burton that “the rent from the restaurant contributed to the support of the garage”); Geneva

Towers Tenants Org. v. Federated Mortg. Inv’rs, 504

F.2d 483, 487 (9th Cir. 1974) (explaining that, in Burton, the “interdependence was principally financial”

and the “rents paid by the shop partially defrayed the

cost of the public facility and enhanced its success”).

App. 17

Although WJC borrowed money from the City to

acquire and improve the Property, the Club does not

allege that WJC and the City are financially integrated. Cf. Rendell-Baker, 457 U.S. at 840 (holding that

“receipt of public funds does not make [a private

school’s] discharge decisions acts of the State”). The

Club does not allege that the City provided any capital

to support WJC’s operations, nor does the Club allege

that the City provided any below-market interest

rates.5 Cf. Geneva Towers, 504 F.2d at 487 (holding that

there was interdependence where private parties invested in a public housing project and received belowmarket interest rates). On the contrary, the operative

complaint acknowledges that WJC has reimbursed the

City in full for all loans and accrued interest.

Indeed, the City distanced itself from WJC

through the terms in the Lease. Unlike in Burton—

where the lease required the parking authority to pay

its tenants’ bills for utilities, heat, maintenance, and

repairs—the Lease here does not require the City to

cover any costs related to WJC or the Property. Instead, the Lease explicitly requires WJC to pay for its

own utilities, operations, maintenance, and repairs.

Also, unlike in Rawson—where a private hospital not

only leased its facility from the state, but operated

alongside the state hospital on the same campus that

was “clearly marked as a state hospital,” 975 F.3d at

5

We do not mean to suggest that any one of those particular

facts “function[s] as a necessary condition” or would be “absolutely sufficient” to establish that WJC acted under color state of

law. Lee, 276 F.3d at 554.

App. 18

756—the Club does not allege that the Property hosts

any City-managed operations or that the Property is

marked as City-owned land. And further unlike in

Rawson, the Club does not allege that WJC and the

City share any personnel. See id. at 746.

The Club suggested during oral argument that

WJC’s leasing arrangement with the City, alone, is

enough to satisfy Burton. But merely contracting with

the government does not transform an otherwise private party into a state actor. See Rendell-Baker, 457

U.S. at 840-41 (distinguishing Burton and explaining

that “[a]cts of such private contractors do not become

acts of government by reason of their significant or

even total engagement in performing public contracts”); Vincent, 828 F.2d at 569-70 (distinguishing

Burton and finding no state action where a contractor

performed maintenance services at a U.S. Air Force

base because “[t]here is no significant financial ‘integration’ between [the contractor] and the Air Force”).

Moreover, the City does not profit financially from

WJC’s alleged discrimination. In Burton, the financial

successes of the parking authority and its tenant were

inextricably linked an increase in the tenant’s revenue

achieved through the restaurant’s business plan of racial discrimination (more customers, at least in 1961)

correlated with an increase in the parking authority’s

revenue (more cars parked). The parking authority’s financial success also hinged on the tenant’s success to

the extent that the tenant could afford the critical

rental payments, which subsidized the garage’s operations. Therefore, the “profits earned by [the tenant’s]

App. 19

discrimination not only contribute[d] to, but also

[were] indispensable elements in, the financial success

of [the] governmental agency.” 365 U.S. at 724. But

here, the City does not realize any share of the revenue

earned from WJC’s rental agreements. Regardless of

however much WJC may profit from renting or refusing to rent event space, the City receives only $1 per

month in rent. Thus, the Club fails to plead that WJC’s

nonprofit operations are indispensable to the City’s

continued viability. Cf. Brunette, 294 F.3d at 1213-14

(finding no symbiotic relationship because plaintiff

failed to allege that the private news company “rendered any service indispensable to the Humane Society’s continued financial viability”); Vincent, 828 F.2d

at 569-70 (finding no symbiotic relationship because

the contractor performing maintenance services at the

Air Force base “was most certainly not an indispensable element in the Air Force’s financial success”).

Setting aside the fact that the City does not profit

financially from WJC’s alleged discrimination, the

Club maintains that the City “profits” intangibly by allowing civic programs to operate in the City. The Club

contends that WJC canceled the speaking event to preserve its reputation, which allowed WJC to continue

carrying out its “non-profit law related functions,”

which in turn benefited the City and its citizens. But

this contention expansively stretches Burton to capture the mere generic promotion of a public purpose—

the principal goal of government writ large. Adopting

this theory would cast almost any nonprofit with a

civic mission and some contractual relationship with

App. 20

the government as a state actor. The City certainly derives some benefit insofar as its citizens benefit from

WJC’s “study of dispute resolution and the administration of justice.” But “any exchange of mutual benefits

. . . falls far short of creating the substantial interdependence legally required to create a symbiotic relationship.” Brunette, 294 F.3d at 1214.

Finally, the City’s involvement in WJC’s alleged

discrimination is nowhere near the requisite degree of

“substantial cooperation” mentioned in Burton. The

City did not participate in, or know in advance about,

the initiation or the cancellation of the Club’s speaking

event. In fact, the City did not even learn about the

incident until the Club filed the complaint in this case.

The Club fails to allege that the City “significantly involve[d] itself in the private parties’ actions and decisionmaking at issue.” Rawson, 975 F.3d at 753; see also

Brunette, 294 F.3d at 1212 (finding that a private party

and a “quasi-public” entity “acted independently”

where neither “assisted the other in performance of its

separate and respective task” nor participated in the

other’s preparatory meetings before the alleged constitutional violation).

In all, WJC and its agents were not state actors for

purposes of the Club’s § 1983 claims. The Club fails to

allege that the City has “undertaken a complex and

deeply intertwined process” with WJC to discriminate

against the Club by canceling its speaking event. Rawson, 975 F.3d at 757 (internal citation omitted). The

Club also fails to allege that the City “has so deeply

insinuated itself into this process that [WJC’s] conduct

App. 21

constituted state action.” Id. (internal citation omitted). Accordingly, we affirm the District Court’s dismissals.

B. The Club’s § 1985(3) claim against Judge

Chirlin

While § 1983 provides a cause of action if one person deprives an individual of his constitutional rights,

§ 1985(3) provides a cause of action if two or more

persons conspire to deprive an individual of his constitutional rights. Like § 1983, which requires the

wrongdoer to be a state actor, § 1985(3) requires at

least one of the wrongdoers in the alleged conspiracy

to be a state actor. Indeed, the Supreme Court has held

that “an alleged conspiracy to infringe First Amendment rights is not a violation of § 1985(3) unless it is

proved that the State is involved in the conspiracy.”

United Bhd. of Carpenters & Joiners, Local 610 v. Scott,

463 U.S. 825, 830 (1983).

Here, however, the Club fails to allege that a state

actor participated in the alleged conspiracy. The Club

alleges only that Judge Chirlin “conspired with members of the staff and executive committee of [WJC] to

deprive [the Club] and its members of civil rights.” The

Club attempts to sidestep the state-action requirement

by arguing that WJC itself is a state actor, but for the

same reasons described above, this argument fails as

to WJC and its agents. Because WJC and its agents are

not state actors, and because the Club does not allege

that the City or some other state actor participated in

App. 22

the alleged conspiracy, the Club fails to state a claim

under § 1985(3).

IV. SUMMARY JUDGMENT

A municipality may be sued for constitutional violations under § 1983, but “claims cannot predicate municipal liability for constitutional violations of its

officers under the theory of respondeat superior.” Lockett v. Cty. of L.A., 977 F.3d 737, 741 (9th Cir. 2020) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691

(1978)). To establish Monell liability under § 1983, the

constitutional violation must be caused by a municipality’s “policy, practice, or custom” or be ordered by a

policy-making official. See Dougherty v. City of Covina,

654 F.3d 892, 900 (9th Cir. 2011); Gibson v. Cty. of

Washoe, 290 F.3d 1175, 1185-86 (9th Cir. 2002), overruled on other grounds by Castro v. Cty. of L.A., 833

F.3d 1060, 1076 (9th Cir. 2016).

The Club argues that the City is liable for WJC’s

alleged constitutional violation because the City delegated final policy-making authority when it leased the

Property to WJC. Through the terms in the Lease, the

Club argues, the City delegated complete discretion

over whether and to whom the Property could be

rented during nonbusiness hours. Therefore, WJC’s refusal to rent the Property to political groups and its

subsequent cancellation of the Club’s speaking event

constituted “an act of official governmental policy.” The

Club seems to suggest that we should infer delegation—and thus liability—from the mere fact that a

App. 23

private party rented out space on the property that it

had leased from the government.

Although it is true that the Lease did not prohibit

WJC from renting out event space during nonbusiness

hours, a permissive lease covenant does not convert

discretion into delegation, even when that discretion

rests with a public official. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84 (1986) (plurality opinion)

(“The fact that a particular official—even a policymaking official—has discretion in the exercise of particular

functions does not, without more, give rise to municipal liability based on an exercise of that discretion.”).

And even more so here. When the City executed the

Lease, it was not delegating final policy-making authority on political speaking events in the City; it was

simply conveying a property interest—the right of occupancy—in the premises. WJC maintained the authority to decide who, when, for what reason, and for

how long a visitor could occupy the premises during

nonbusiness hours. Therefore, when WJC executed—

and rescinded—the rental agreement with the Club,

WJC was exercising its discretionary authority on its

own behalf as the holder of a possessory interest in the

Property. WJC was not exercising any “policymaking

authority for a particular city function” on behalf of the

City. Hammond v. Cty. of Madera, 859 F.2d 797, 802

(9th Cir. 1988), abrogated on other grounds as stated in

L. W. v. Grubbs, 92 F.3d 894, 897-98 (9th Cir. 1996).

“[T]he fact that the government licenses, contracts

with, or grants a monopoly to a private entity does not

convert the private entity into a state actor—unless

App. 24

the private entity is performing a traditional, exclusive

public function.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1931-33 (2019) (holding that the

private operator of a public access channel was not a

state actor). And, of course, there is no claim that renting out event space during nonbusiness hours is a “traditional, exclusive public function.” The government

does not, without more, become vicariously liable for

the discretionary decisions of its lessee. Accordingly,

the undisputed facts show that the City did not delegate any final policy-making authority that caused the

Club’s alleged constitutional injury.

AFFIRMED.

App. 25

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

PASADENA REPUBLICAN )

No.

CLUB,

) 2:18 cv-09933 AWT-AFM

) ORDER RE MOTIONS:

Plaintiff,

)

v.

) (1) TO DISMISS [26];

AND

)

WESTERN JUSTICE

CENTER; CITY OF PAS- ) (2) FOR SUMMARY

ADENA, CALIFORNIA; )

JUDGMENT [27]

)

and JUDITH CHIRLIN,

)

Defendants.

)

(Filed Dec. 30, 2019)

The Pasadena Republican Club alleges that the

Western Justice Center, a private nonprofit organization, discriminates on the basis of political and religious viewpoint in the rental of event space to outside

groups, in violation of the First Amendment. The Club

has sued the Center, the Center’s former executive director, and the City of Pasadena, which owns the property and leases it to the Center, under 42 U.S.C. § 1983.

It has also asserted an additional claim against Judith

Chirlin, the former executive director of the Center, under 42 U.S.C. § 1985(3). The Center and Chirlin have

moved to dismiss the first amended complaint under

Fed. R. Civ. P. 12(b)(6). ECF 26. The City has moved for

summary judgment under Fed. R. Civ. P. 56. ECF 27.

The court will grant the Center’s and Chirlin’s

motion to dismiss because the complaint does not

App. 26

plausibly allege that the Center and Chirlin were acting under color of state law, as § 1983 requires, or that

the City was involved in the alleged conspiracy, as

§ 1985(3) requires. Although a symbiotic relationship

existed to some degree between the Center and the

City, this case is distinguishable from Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), upon

which the Club relies, because, among other things, the

property was not partly maintained by the City, the

City did not knowingly accept the benefits of the alleged discrimination and the Center’s involvement was

not indispensable to the City’s financial success. Under

the facts and circumstances alleged here, the City has

not “so far insinuated itself into a position of interdependence with [the Center] that it must be recognized

as a joint participant in the challenged activity.” Id. at

725.

The court also will grant the City’s motion for

summary judgment, because the record does not support the conclusion that the alleged constitutional violations were caused by a City policy or custom, as

required to establish municipal liability under § 1983.

See Monell v. Dept of Soc. Servs. of City of N.Y., 436 U.S.

658, 694 (1978). The policies at issue here regarding

the rental of the Center’s premises to outside groups

were those of the Center, not those of the City. Although the Club contends that the City delegated final

policymaking authority to the Center, the record shows

only that the City, by lease, conveyed a property interest to the Center, not that it delegated City policymaking authority to the Center.

App. 27

BACKGROUND

Plaintiff Pasadena Republican Club (“Club”) is a

voluntary membership organization that supports the

election of Republican candidates to local, state, and

national office. First Amended Complaint (“complaint”

or “FAC”) ¶ 4. Defendant Western Justice Center

(“Center”) is a § 501(c) (3) nonprofit corporation. FAC

¶ 6. Defendant Judith Chirlin was the executive director of the Center at the time of the events at issue

in this action. FAC ¶ 7. Defendant City of Pasadena

(“City”) is a city in the State of California. FAC ¶ 5.

In 1989, the Center agreed to lease certain real

property, commonly known as 55-85 South Grand Avenue, Pasadena, from the Pasadena Surplus Property

Authority, a public corporation formed by the City pursuant to state law. FAC ¶¶ 8-9. Among the buildings

included in the lease is the historic Maxwell House, located at 55 South Grand Avenue. FAC ¶ 8; Lease

Agreement 1 6.1.

The lease states:

Landlord is entering into this Lease as a

means of benefiting the citizens of the city of

Pasadena (the “City”) and its environs through

a center for the study of dispute resolution

and the administration of justice, to provide

additional employment and revenues to the

local economy, to provide for improvements in

both the local, regional, national, and international components of the legal system, and to

provide a forum for educational research.

Landlord is also entering into this Lease for

App. 28

the purpose of insuring the restoration and

historic preservation of the Premises. A detailed copy of Landlord’s goals is attached in

the Plan of Public Use for Surplus Property

attached hereto as Exhibit B. Tenant is entering into this Lease, rather than directly purchasing the Premises, because the Tenant

does not qualify as an organization eligible to

purchase the Premises [from the federal government]. It is the intent that neither Landlord nor the City of Pasadena shall be

required to contribute general funds to the acquisition, restoration or renovation of the

Premises. . . .

Lease Agreement ¶ 1.2; FAC ¶ 10.1

The lease is for an initial term of 55 years and

grants the Center an option to extend the lease for an

additional 44 years. FAC ¶ 8; Lease Agreement ¶¶ 2.1,

2.3. It requires the Center to cover all costs related to

the acquisition, improvement, repair and maintenance

of the premises, and it specifically states that the landlord – initially the Pasadena Surplus Property Authority, and later the City – shall “have no obligation, in

any manner whatsoever, to repair and maintain the

1

The complaint incorporates the lease agreement by reference. See United States v. Corinthian Colls., 655 F.3d 984, 999

(9th Cir. 2011) (“As a general rule, we may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.

We may, however, consider . . . unattached evidence on which the

complaint necessarily relies if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3)

no party questions the authenticity of the document.” (citations

and internal quotation marks omitted)).

App. 29

Premises nor the buildings located thereon nor the

equipment therein, whether structural or non-structural.” Lease Agreement ¶¶ 1.2, 3.1-3.2, 5.3.1, 6, 7.1,

7.3; Duyshart decl. ¶ 8. The lease expressly prohibits

the Center from discriminating against “any employee

or applicant for employment . . . because of race, color,

religion, sex, physical handicap, or national origin,”

and it requires the Center to “establish and carry out

an Affirmative Action Plan for equal employment opportunity and affirmative action in contracting.” Lease

Agreement ¶¶ 31-32.

The provision of the lease governing the Center’s

use of the premises states that:

The Premises shall be used and occupied

by Tenant and its sublessees only for the purposes described in the Plan of Public Use for

Surplus Property, including but not limited to

the following non-profit law related functions:

(i) operation of a center for the study of the

following matters: alternative dispute resolution, administration of justice, delivery of legal services, and other legally oriented issues;

(ii) providing space to non-profit entities for

legal seminars, meetings, conferences, hearing rooms, deposition rooms, arbitration rooms,

law library, research space; (iii) residential

and office facilities for legal researchers and

scholars and ancillary services such as dining facilities; and (iv) for subleasing portions

of the Premises to tax exempt organizations

providing law related services, and for no

other purposes whatsoever. Tenant is expressly prohibited from leasing the Premises

App. 30

or any portion thereof to lawyers offering legal services for profit or allowing the Premises or any portion thereof to be used for any

for profit activities. Tenant shall continuously

during the term of this Lease following completion of all Tenant Improvements (as

herein defined) use the Premises for these

purposes during ordinary business hours.

Nothing herein precludes Tenant from using

the Premises for community meetings and

other purposes during non-business hours.

Lease Agreement ¶ 5.1 (emphasis added); FAC ¶¶ 1113.

With respect to this last subject – the rental of the

premises to outside groups during non-business hours

– the lease places no restrictions on the Center, and the

undisputed evidence in the summary judgment record

states that the City “has no input or control over the

entities to which the Western Justice Center may rent

its meeting rooms at the premises during the evening

hours.” Duyshart decl. ¶ 9. It further states that the

City “derives no income, revenue or other financial

benefit on account of the Western Justice Center’s

rental of meeting rooms.” Duyshart decl. ¶ 7.

In 1994, the City agreed to provide up to $458,000

to the Center for tenant improvements. FAC ¶ 14. The

City acquired these funds through its governmental

borrowing authority. FAC ¶ 15. The Center, in turn, repaid the funds through rental payments to the City.

FAC ¶¶ 14-15. Those loans have now been repaid, and

the Center’s current rent – through the end of the lease

App. 31

– is $1 per month. FAC ¶ 15. Also in 1994, the Pasadena Surplus Property Authority transferred title to

the property to the City, subject to the Center’s lease.

FAC ¶ 14.2

Before the events giving rise to this litigation, the

Club periodically rented the Maxwell House from the

Center for Club events. FAC ¶ 16; Gabriel decl. ¶ 2.

Consistent with that practice, in early 2017 the Club

rented the Maxwell House from the Center for a Club

event to take place on April 20, 2017. FAC ¶ 17; Gabriel

decl. ¶ 3. The rental fee was $190, and the scheduled

speaker was Dr. John Eastman, a noted professor of

constitutional law. FAC ¶ 17, 20-21; Gabriel decl. ¶ 3.

The Club also inquired about renting the Maxwell

House for a Club event to take place in May 2017. Gabriel decl. ¶ 5. In an April 23 email, however, Chirlin

informed Gabriel that the Maxwell House would be unavailable for the May event because the Center would

no longer rent the premises to political groups:

Nicole forwarded your email to me. I’m

sorry you have been left hanging, so to speak.

When the issue of your April meeting came to

my attention, I presented it to our Executive

Committee. It was decided that because of the

2

The quitclaim deed includes a rider by which the “grantee”

covenants not to “discriminate upon the basis of race, color, religion, sex, or national origin in the use, occupancy, sale, or lease of

the property, or in their employment practices conducted

thereon.” ECF 30-2 at 99. At the October 23 hearing, counsel for

the City suggested that the Center was the grantee under this

rider. It appears, however, that the City was the grantee.

App. 32

heightened political rancor these days, and

because it is the mission of the Western Justice Center to promote peaceful conflict resolution and reduce prejudice and intergroup

conflict, we should not make the Maxwell

House available for rental to political groups

– one side or the other.

Because your April meeting was already

scheduled I thought it inappropriate for us to

implement the policy with regard to that

meeting. (It also helped that you have a recognized legal scholar as your speaker.) So the

Executive Committee agreed that we could go

ahead with the rental for April, but not beyond.

I apologize that this comes to you just

days before you leave on vacation. I do hope

you are able to find a suitable venue quickly

and that you have a safe and lovely vacation.

FAC ¶ 18; Gabriel decl. ¶ 5; Gabriel decl., exh. C.3

The Club contends that the Center applied this

new policy selectively. It asserts that, even after

Chirlin announced the new policy in April 2017, the

Center continued to allow the League of Women Voters

Pasadena Area – which subleases a portion of the 5585 South Grand Avenue property and which the FAC

alleges is a “political organization” that “opposes President Trump” – to use the grounds of the Maxwell

3

The complaint incorporates Chirlin’s April 3 and April 20,

2017, emails by reference.

App. 33

House for political events. FAC ¶ 18; Gabriel decl. ¶¶ 56.4, 5

On the afternoon of April 20, 2017, Chirlin informed Gabriel by email that the Club would not be

able to use the Maxwell House for the Eastman event

scheduled to take place that evening. FAC ¶ 24; Gabriel decl. ¶ 7. Chirlin wrote:

Dear Ms. Gabriel,

It is with regret that I inform you that

The Pasadena Republican Club cannot use

our facilities for your meeting tonight. While

I knew that Prof Eastman was a professor

and author, we learned just today that he

is the President of the National Organization for Marriage (NOM). NOM’s positions

4

On its website, the League of Women Voters Pasadena Area

describes itself as “a nonpartisan political organization” that neither supports nor opposes “any political party or candidate.”

https://my.lwv.org/california/pasadena-area/about.

5

To support this allegation, the Club relies on Gabriel’s declaration, which states in relevant part: “On information and belief, the League of Women Voters continues to rent city-owned

property from the Western Justice Center on the Maxwell House

campus and the League uses the grounds of the Maxwell House

for some of its political events.” Gabriel decl. ¶ 6. The City has

filed evidentiary objections to this evidence on several grounds,

including lack of personal knowledge. ECF 40-1 at 2. See Fed. R.

Evid. 602 (“A witness may testify to a matter only if evidence is

introduced sufficient to support a finding that the witness has

personal knowledge of the matter.”). Because this testimony is not

material to the court’s analysis, however, the court need not address the City’s objections. Notably, the Center has not yet answered the complaint, and so it has not to date either admitted or

denied the Club’s allegation.

App. 34

on same-sex marriage, gay adoption, and

transgender rights are antithetical to the values of the Western Justice Center. Western

Justice Center exists to build a more civil,

peaceful society where differences among people are valued. WJC works to improve campus

climates with a special focus on LGBT bias

and bullying. We work to make sure that

people recognize and stop LGBT bullying.

Through these efforts we have built a valuable reputation in the community, and allowing

your event in our facility would hurt our reputation in the community.

We will return the fee that you have paid

immediately.

Gabriel decl., exh. D; FAC ¶ 24. Chirlin later informed

Gabriel that the decision had been made by the Center’s executive committee. FAC ¶ 26; Gabriel decl. ¶ 7.

The Club was able to relocate the evening’s event to an

another venue, but at additional cost and with diminished attendance. FAC ¶¶ 29-31.

In November 2018, the Club filed this action. ECF

1. The operative FAC names three defendants – the

Center, Chirlin and the City – and asserts four causes

of action. ECF 14.

The first cause of action, arising under 42 U.S.C.

§ 1983, alleges viewpoint discrimination in violation of

the First Amendment against all defendants and is

based on the allegation that the defendants discriminated against the Club on account of the viewpoint of

the speaker it chose for its event. FAC ¶¶ 32-39. The

App. 35

second cause of action, also arising under § 1983, alleges religious belief discrimination in violation of the

First Amendment against all defendants and is based

on the allegation that the Center adopted a policy prohibiting the rental of the Maxwell House to political

groups, but applied that policy selectively to the Club

on account of the viewpoint of the Club and its members. FAC ¶¶ 40-47. The third cause of action, again

arising under 1983, alleges religious belief discrimination against all defendants based on the allegation

that the defendants discriminated against the Club on

account of the religious viewpoint of the speaker it

chose for its event. FAC ¶¶ 48-55. The fourth cause

of action, arising under 42 U.S.C. 1985, is asserted

against Chirlin alone. FAC ¶¶ 56-60. It alleges that

Chirlin conspired with members of the Center’s staff

and executive committee to deny civil liberties guaranteed by the First Amendment to the Club and its

members, and that the conspiracy was motivated by

political and religious animus. FAC ¶¶ 56-60.6

The FAC alleges that the Center and Chirlin are

“state actors” for purposes of § 1983 – i.e., that they

acted under color of state law – because the property

is owned by the City and is leased to the Center to promote the governmental purposes of the City. FAC

¶¶ 33, 41, 49. It seeks declaratory and injunctive relief,

6

Chirlin’s motion to dismiss does not challenge this claim

under the intracorporate conspiracy doctrine. See Portman v.

County of Santa Clara, 995 F.2d 898, 910 (9th Cir. 1993) (declining to resolve whether “the ‘intra-corporate conspiracy’ doctrine

applies in section 1985 cases”); Padway v. Palches, 665 F.2d 965,

968-69 (9th Cir. 1982) (same).

App. 36

compensatory and punitive damages, and attorney’s

fees and costs. FAC at 21-24.

On May 1, 2019, Chirlin and the Center moved to

dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). ECF 26. Chirlin and the Center argue

that: (1) they cannot be liable under § 1983 because

they did not act under color of state law; (2) the Center

cannot be liable under § 1983 because the complaint

does not allege a relevant policy or practice of the Center under Monell; (3) the § 1985 claim fails because the

complaint does not allege state involvement in the alleged conspiracy; and (4) the § 1985 claim fails because

§ 1985 does not reach conspiracies motivated by political or religious animus.

The same day, the City moved for summary judgment, see Fed. R. Civ. P. 56, arguing that the City cannot be liable under § 1983 because the Club cannot

establish that any constitutional violation was caused

by an official policy or custom of the City.7 ECF 27.

LEGAL STANDARD

A motion under Rule 12(b)(6) asserts a “failure to

state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). “In evaluating a 12(b)(6) motion, we accept ‘as true all well-pleaded allegations of fact in the

complaint’ and construe them in the light most favorable to the non-moving party.” Cedar Point Nursery v.

Shiroma, 923 F.3d 524, 530 (9th Cir. 2019) (quoting

7

Both motions were orally argued on October 23, 2019.

App. 37

Corinthian Colls., 655 F.3d at 991). “To survive a motion to dismiss, the complaint ‘must contain sufficient

factual matter’ that, taken as true, states ‘a claim to

relief that is plausible on its face.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Under Rule 56, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Summary judgment will be denied if, “ ‘viewing the evidence in the light most favorable to the non-moving

party,’ there are genuine issues of material fact.” Nolan

v. Heald Coll., 551 F.3d 1148, 1154 (9th Cir. 2009)

(quoting Leisek v. Brightwood Corp., 278 F.3d 895, 898

(9th Cir. 2002)).

DISCUSSION

I.

Motion to Dismiss

As noted, the motion to dismiss raises four arguments. The court addresses them seriatim.

A. Whether the Complaint Plausibly Alleges that Chirlin and the Center Were

Acting Under Color of State Law

As discussed above, the complaint’s first three

causes of action arise under § 1983.8 In their motion to

8

42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or

App. 38

dismiss, Chirlin and the Center challenge these claims

on the ground that the complaint fails to plausibly allege that Chirlin, a private person, and the Center, a

private entity, were acting under color of state law.

ECF 26 at 6-14.

To state a claim under § 1983, a plaintiff must allege not only the violation of a right secured by the

Constitution and laws of the United States, but also

that “the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487

U.S. 42, 48 (1988). “Like the state-action requirement

of the Fourteenth Amendment, the under-color-ofstate-law element of § 1983 excludes from its reach

‘merely private conduct, no matter how discriminatory

or wrongful.’ ” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S.

991, 1002 (1982)). When addressing whether a private

party acted under color of state law, therefore, we “start

with the presumption that private conduct does not

constitute governmental action.” Sutton v. Providence

St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999).

Courts have used four different tests to determine

whether this presumption has been overcome: (1) the

public function test; (2) the joint action or symbiotic

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress. . . .

App. 39

relationship test; (3) the governmental compulsion or

coercion test; and (4) the governmental nexus test. See

id. at 835-36 (citing Lugar v. Edmondson Oil Co., 457

U.S. 922, 939 (1982)). There is, however, “no specific formula for defining state action.” Id. at 836 (quoting

Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983)).

“Only by sifting facts and weighing circumstances can

the nonobvious involvement of the State in private

conduct be attributed its true significance.” Burton,

365 U.S. at 722.

Here, the only basis relied on by the Club to support its under-color-of-state-law allegation is the joint

action test. “Under the joint action test, we consider

whether ‘the state has so far insinuated itself into a

position of interdependence with the private entity

that it must be recognized as a joint participant in the

challenged activity. This occurs when the state knowingly accepts the benefits derived from unconstitutional behavior.’ ” Id. (quoting Parks Sch. of Bus., Inc. v.

Symington, 51 F.3d 1480, 1486 (9th Cir. 1995)). The

Ninth Circuit has noted that “[a] plaintiff may demonstrate joint action by proving the existence of a conspiracy or by showing that the private party was ‘a willful

participant in joint action with the State or its

agents.’ ” Franklin v. Fox, 312 F.3d 423, 445 (9th Cir.

2002) (quoting Collins v. Womancare, 878 F.2d 1145,

1148 (9th Cir. 1989)).

The Club argues that this case is controlled by

Burton, which involved a restaurant – the Eagle Coffee

Shoppe, Inc. – that refused to serve the plaintiff on account of his race. See Burton, 365 U.S. at 716. The

App. 40

restaurant was located in a public parking building in

Wilmington, Delaware, and the question presented

was whether, given the symbiotic relationship between

the state and the restaurant, the restaurant’s actions

constituted “state action” for purposes of the Equal

Protection Clause of the Fourteenth Amendment. See

id. at 716-17.9

The Wilmington Parking Authority, in Burton, was

a state agency created by the City of Wilmington, and

this particular parking building was the parking authority’s first project. See id. at 716-18. Before construction began, the parking authority learned that it

would be necessary to lease out a portion of the parking building in order to make the project financially viable. See id. at 719. Accordingly, the parking authority

entered into several long-term commercial leases with

private entities to finance the project. See id. These

commercial tenants included a bookstore, a retail jeweler, a food store, and the Eagle Coffee Shoppe. See id.

at 719-20. The parking authority and the restaurant

entered into a 20-year lease, renewable for an additional 10 years, under which Eagle paid the parking

authority $28,700 in annual rent -about $250,000 in

today’s dollars. See id.

9

Although Burton involved the “state action” requirement

under the Fourteenth Amendment rather than the “under color

of law” requirement under § 1983, the Supreme Court has held

that “conduct satisfying the state-action requirement of the Fourteenth Amendment satisfies the statutory requirement of action

under color of state law.”

App. 41

The Supreme Court concluded that “[t]he State

has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a

joint participant in the challenged activity, which, on

that account, cannot be considered to have been so

‘purely private’ as to fall without the scope of the Fourteenth Amendment.” Id. at 725. The Court explained:

The land and building were publicly owned.

As an entity, the building was dedicated to

“public uses” in performance of the Authority’s “essential governmental functions.” The

costs of land acquisition, construction, and

maintenance are defrayed entirely from donations by the City of Wilmington, from loans

and revenue bonds and from the proceeds of

rentals and parking services out of which the

loans and bonds were payable. Assuming that

the distinction would be significant, the commercially leased areas were not surplus state

property, but constituted a physically and financially integral and, indeed, indispensable

part of the State’s plan to operate its project

as a self-sustaining unit. Upkeep and maintenance of the building, including necessary repairs, were responsibilities of the Authority

and were payable out of public funds. It cannot be doubted that the peculiar relationship

of the restaurant to the parking facility in

which it is located confers on each an incidental variety of mutual benefits. Guests of

the restaurant are afforded a convenient place

to park their automobiles, even if they cannot

enter the restaurant directly from the parking

area. Similarly, its convenience for diners may

App. 42

well provide additional demand for the Authority’s parking facilities. Should any improvements effected in the leasehold by Eagle

become part of the realty, there is no possibility of increased taxes being passed on to it

since the fee is held by a tax-exempt government agency. Neither can it be ignored, especially in view of Eagle’s affirmative allegation

that for it to serve Negroes would injure its

business, that profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of

a governmental agency.

Id. at 723-24 (citations omitted). The Court emphasized, however, that “readily applicable formulae may

not be fashioned,” and thus that “the conclusions

drawn from the facts and circumstances of this record

are by no means declared as universal truths on the

basis of which every state leasing agreement is to be

tested.” Id. at 725.

To support its contention that Burton is controlling here, ECF 35 at 6-11, the Club argues that the

Center and Chirlin were state actors with regard to

their operation of the subject property because: (1) the

City purchased the property for the public purposes of

the City; (2) the City relied entirely on funds provided

by the Center to purchase the property; (3) the City

borrowed money to finance the repair and restoration

of the property and relied entirely on the Center for the

repayment of the City’s creditors; and, thus, (4) the

“Center was indispensable to the financial success of

the City’s project to acquire and restore this property

App. 43

and to operate it for the public purposes of the City.”

ECF 35 at 1.10

In the Club’s view, “[t]he facts in this case are very

similar to the facts in Burton with two differences,”

both of which serve only to strengthen the case for finding joint action. ECF 35 at 7. “First, rather than relying

on the Western Justice Center for only part of the cost

of the acquisition [and] construction of the property as

was the case in Burton, the City of Pasadena relied entirely on the Western Justice Center.” ECF 35 at 7.

Thus, “the Western Justice Center’s financial participation in this project was even more critical than the

restaurant’s participation in the Wilmington Parking

Authority’s construction of the parking structure at issue in Burton.” ECF 35 at 7. “Second, the City relied on

the Western Justice Center to accomplish the City’s

public purposes in acquiring this property” – namely,

“creat[ing] a center for the study of dispute resolution

and the administration of justice” and “preserv[ing]

10

In its briefing and evidentiary objections (ECF 40 at 3;

ECF 40-1 at 2-5), the City notes that many of these actions – those

occurring between 1989 and 1994 – involved the Pasadena Surplus Property Authority, not the City itself. The City faults the

Club for “conflating the Pasadena Surplus Property Authority

and the City of Pasadena, with no legal or factual grounds for doing so.” ECF 40 at 3. The allegations of the complaint, however,

plausibly allege that the Pasadena Surplus Property Authority

was an arm or instrumentality of the City, and the evidence in

the summary judgment record likewise establishes, at the least,

a triable issue on that question. Thus, although not barring the

City from pursuing its incipient objection, if necessary, on any future motion, for the purpose of the pending motions, the court assumes that the actions of the Pasadena Surplus Property

Authority are attributable to the City.

App. 44

and restor[ing] . . . historic structures in the City.” ECF

35 at 7-8.

The court agrees with the Club that there was a

degree of joint action here. The City owns the property,

purchased the property from the federal government

because the Center was ineligible to do so on its own

and used its borrowing authority to help finance improvements to the property, albeit at no cost to the City.

The Center, in turn, has paid for all aspects of the purchase, improvement and maintenance of the property,

and it has used the property in a manner that, in the

City’s view, benefits the citizens of the City. The mutual

benefits that the arrangement confers on the City and

the Center plainly establish a symbiotic relationship

between them, at least to some degree.

Not every “exchange of ‘mutual benefits,’ ” however, “creat[es] the substantial interdependence legally

required to create a symbiotic relationship.” Brunette

v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1214

(9th Cir. 2002) (as amended); see DeBauche v. Trani,

191 F.3d 499, 507 (4th Cir. 1999) (explaining that Burton “certainly does not stand for the proposition that

all public and private joint activity subjects the private

actors to the requirements of the Fourteenth Amendment”). Here, although the allegations of the complaint

demonstrate a degree of interdependence, several

countervailing considerations lead the court to conclude that “[t]he interdependence found in Burton was

more extensive.” Scott v. Eversole Mortuary, 522 F.2d

1110, 1114 (9th Cir. 1975).

App. 45

First, the Supreme Court has noted that, “in determining whether a particular action or course of conduct is governmental in character, it is relevant to

examine . . . the extent to which the [private] actor relies on governmental assistance and benefits.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621 (1991)

(citing Burton, 365 U.S. 715); see also Manhattan Cmty.

Access Corp. v. Halleck, 139 S. Ct. 1921, 1942 n.11

(2019) (Sotomayor, J., dissenting) (emphasizing that

in Burton the restaurant was “partly maintained” by

the parking authority). In Burton, the parking authority provided significant financial support to the restaurant, and the finances of the two were significantly

integrated. The parking authority, for example, “covenanted to complete construction expeditiously, including completion of ‘the decorative finishing of the leased

premises and utilities therefor, without cost to Lessee,’

including necessary utility connections, toilets, hung

acoustical tile and plaster ceilings; vinyl asbestos, ceramic tile and concrete floors; connecting stairs and

wrought iron railings; and wood-floored show windows.” Burton, 365 U.S. at 719. It also “agreed to furnish heat for Eagle’s premises, gas service for the

boiler room, and to make, at its own expense, all necessary structural repairs, all repairs to exterior surfaces except store fronts and any repairs caused by

lessee’s own act or neglect.” Id. at 720. In Burton, moreover, “[t]he costs of land acquisition, construction,

and maintenance [we]re defrayed entirely from” public

funds, and “[u]pkeep and maintenance of the building,

including necessary repairs, were responsibilities of

App. 46

the Authority and were payable out of public funds.”

Id. at 723-24.

Here, by contrast, the Club does not allege that the

Center relies in any significant respect on “governmental assistance and benefits.” Edmonson, 500 U.S. at

621. On the contrary, the Club acknowledges that, “[i]n

making this purchase, the City relied entirely on funds

provided by the Western Justice Center as part of a

lease agreement for the property” and that “the City

relied entirely on the Western Justice Center for

the repayment of the City’s creditors.” ECF 35 at 1.

Whereas in Burton the restaurant was partly maintained by the City, here the lease provides that the City

has “no obligation, in any manner whatsoever, to repair

and maintain the Premises nor the buildings located

thereon nor the equipment therein, whether structural

or non-structural, all of which obligations are intended

to be that of Tenant.” Lease Agreement ¶ 7.3. This case,

therefore, lacks the “significant financial integration”

present in Burton. Brunette, 294 F.3d at 1213.

Second, the Supreme Court has emphasized that

joint action exists under Burton when a public entity

“knowingly accepts the benefits derived from unconstitutional behavior.” NCAA v. Tarkanian, 488 U.S. 179,

192 (1988); see Gorenc v. Salt River Project Agr. Imp. &

Power Dist., 869 F.2d 503, 507 (9th Cir. 1989) (“[I]f the

state ‘knowingly accepts the benefits derived from unconstitutional behavior,’ as the city did in Burton, then

the conduct can be treated as state action.” (quoting

Tarkanian, 488 U.S. at 192)).

App. 47

Here, however, the Club does not allege that the

City knowingly accepted any benefits derived from the

Center’s challenged behavior. First, the complaint does

not allege that the City was involved in – or had any

knowledge of – the Center’s decisions regarding the

rental of the premises to outside groups during nonbusiness hours. The City, therefore, could not have

knowingly accepted any benefits from those decisions.

Second, the complaint does not allege that the City

benefited in any significant way from the Center’s

rental decisions. The City does not receive a portion of

the rental fees the Center collects from outside groups,

and the Center’s rental payments to the City are just

$1 per month. FAC ¶ 15.

The Club contends that the Center benefited from

the Center’s decision to cancel the April 20 contract because the cancellation preserved the Center’s reputation in the community, which in turn allowed the

Center to better perform its mission – a mission that

benefits the citizens of the City. According to the Club:

In cancelling the Pasadena Republican Club’s

contract to use the Maxwell House property,

the Western Justice Center and Judith

Chirlin stated that they were acting to preserve the reputation of the Western Justice

Center and its ability to carry out its mission

of dispute resolution. Thus, the anti-religious

bigotry evidenced by the action of the Western

Justice Center’s executive committee and Ms.

Chirlin’s email was necessary for the Center’s

dispute resolution activities. The City profits

by this anti-religious bigotry because the

App. 48

discrimination is claimed to be necessary for

dispute resolution which was the public purpose of the City in placing Western Justice

Center in control of the city-owned Maxwell

House property. This is no different than the

restaurant’s claim in Burton that racial discrimination was necessary to provide the

monetary profits that the restaurant would

share with the parking authority.

ECF 35 at 9-10. Whatever merit there may be to this

attenuated theory of “benefit,” see Benn v. Universal

Health Sys., Inc., 371 F. 3d 165, 173 (3d Cir. 2004)

(“[T]here certainly is no evidence that the government

received any tangible benefit from [the private entity],

save a possible increase in the general welfare.”), the

alleged benefit in this case cannot be compared to the

direct financial benefit the parking authority in Burton

received – $28,700 in annual rent from the segregated

restaurant – that was indispensable to the parking

authority’s financial success. Burton, 365 U.S. at 720,

724. In Burton, the parking authority both contributed

financially to the operation of the restaurant and derived a significant share of the profits. Here, by contrast, the City neither contributes to the Center’s costs,

nor profits in any significant way from Center’s activities. Nor did the City have notice of, and acquiesce in,

the Center’s allegedly discriminatory actions, as was

the case in Burton.

Third, in the Ninth Circuit, an “element of financial indispensability . . . is ‘at the core of the joint participation found in Burton.’ ” Vincent v. Trend W. Tech.

App. 49

Corp., 828 F.2d 563, 569 (9th Cir. 1987) (alteration

omitted) (quoting Frazier v. Bd. of Trustees of Nw. Miss.

Reg’l Med. Ctr., 765 F.2d 1278, 1288 (5th Cir. 1985) (as

amended)). “[I]f a private entity, like the restaurant in

Burton, confers significant financial benefits indispensable to the government’s ‘financial success,’ then a

symbiotic relationship may exist.” Brunette, 294 F.3d

at 1213 (emphasis added) (quoting Vincent, 828 F.2d at

569).

The Club suggests that this indispensability element is satisfied here because the Center was indispensable to the financial success of this project:

Without the financial participation of the

Western Justice Center, there is no showing

that the City could have purchased or repaired and refurbished the property. In short,

the Western Justice Center’s financial participation in this project was even more critical

than the restaurant’s participation in the Wilmington Parking Authority’s construction of

the parking structure at issue in Burton.

ECF 35 at 1, 7. In Burton, however, the restaurant’s

profits were indispensable not only to “the State’s plan

to operate its project as a self-sustaining unit” but also

to “the financial success of a governmental agency” –

i.e., to the financial success of the parking authority

generally. Burton, 365 U.S. at 723-24. And in applying

the indispensability element, the Ninth Circuit has

consistently looked to whether a private actor was indispensable to the financial success of the public entity as a whole, not merely to a particular project. See

App. 50

Brunette, 294 F.3d at 1214 (holding that there was no

joint action where the plaintiff did not “allege the Media rendered any service indispensable to the Humane

Society’s continued financial viability” or allege that

the private actors were “indispensable, in any way,” to

the Humane Society’s “continued . . . financial success”

(emphasis added)); Vincent, 828 F.2d at 569 (“While

Trend may have been dependent economically on its

contract with the Air Force, Trend was most certainly

not an indispensable element in the Air Force’s financial success.” (emphasis added)); Scott, 522 F.2d at 1115

(“The interdependence found in Burton was more extensive. Because the financial self-sufficiency of the

state agency depended upon the profitability of the segregated restaurant, the state agency became a joint

venturer in the latter’s affairs.” (emphasis added)).

The Club emphasizes the fact that the City purchased the property for public use – that is, to benefit

the citizens of the City and its environs. ECF 35 at 1,

7; Lease Agreement ¶ 1.2. Standing alone, however,

“public benefit is not enough to confer state action.”

Gorenc, 869 F.2d at 508 (citing Jackson, 419 U.S. at

352-53). The fact that the City believes the Center’s operations benefit the citizens of the City is relevant to

but not dispositive of the state action inquiry. Furthermore, although the Club argues that the Center performs a public purpose, it does not argue that the

public function test for state action is satisfied here.

Any such argument would fail, because the functions

at issue here – operating a center for the study of dispute resolution and the administration of justice and

App. 51

preserving historic properties -are not “traditionally

and exclusively governmental.” Lee v. Katz, 276 F.3d

550, 555 (9th Cir. 2002) (citing Rendell-Baker, 457 U.S.

at 842). Nor does the Club contend that the Center “is

an agency or instrumentality” of the City, Lebron v.

Nat’l R.R. Passenger Corp., 513 U.S. 374, 394 (1995), or

that the City “intended either overtly or covertly to encourage discrimination,” Moose Lodge No. 107 v. Irvis,

407 U.S. 163, 173 (1972). The Center’s operations are

not a City program managed by the Center on the

City’s behalf; they are the Center’s program, independently operated by the Center with the City’s limited, albeit not insubstantial, support.

In sum, the specific facts and circumstances favoring a finding of joint action in this case do not come

close to approaching those present in Burton. The facts

here, simply, are not as supportive of joint action as

those in Burton.11 The court therefore concludes that

11

The court recognizes that the City could have negotiated

for a term in the lease agreement prohibiting the Center from discriminating in the rental of the premises during non-business

hours. Cf. Burton, 365 U.S. at 715 (“[I]n its lease with Eagle the

Authority could have affirmatively required Eagle to discharge

the responsibilities under the Fourteenth Amendment imposed

upon the private enterprise as a consequence of state participation.”). This is true, however, of every contractual relationship between a governmental entity and a private party. No court has

ever held that every government contractor is a state actor merely

because its contract with the government does not prohibit it from

engaging in a particular type of discrimination. Cf. Manhattan

Cmty. Access Corp., 139 S. Ct. at 1931 (“[A]s the Court has long

held, the fact that the government licenses, contracts with, or

grants a monopoly to a private entity does not convert the private

App. 52

the allegations of the FAC do not plausibly allege joint

action, or a symbiotic relationship, between the Center

and Chirlin on the one hand, and the City on the other.

In essence, given the distance between the facts in

this case and those present in Burton, the Club is not

asking the court to apply Burton to comparable facts,

but to extend Burton to a weaker set of facts. The court

declines the invitation to extend Burton because doing

so would require reading Burton expansively, contrary

to the narrow reading courts have consistently given

the case.

As the Court itself said in 1999, the last time it

discussed Burton at any length:

Burton was one of our early cases dealing with

“state action” under the Fourteenth Amendment, and later cases have refined the vague

“joint participation” test embodied in that

case. Blum and Jackson, in particular, have

established that “privately owned enterprises

providing services that the State would not

necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton.”

Am. Mfrs. Mut. Ins. Co., 526 U.S. at 57 (quoting Blum,

457 U.S. at 1011); see also Lebron, 513 U.S. at 409

(O’Connor, J., dissenting) (“Our decision in Burton . . .

was quite narrow. We recognized ‘the limits of our inquiry’ and emphasized that our decision depended on

entity into a state actor – unless the private entity is performing

a traditional, exclusive public function.”).

App. 53

the ‘peculiar facts [and] circumstances present’ . . . and

our recent decisions in this area have led commentators to doubt its continuing vitality” (alteration in

original)); Gallagher v. Neil Young Freedom Concert, 49

F.3d 1442, 1451 (10th Cir. 1995) (“Subsequent Supreme Court decisions have read Burton narrowly.” (citation omitted)); 1 Martin A. Schwartz, Section 1983

Litigation: Claims and Defenses § 5.13[A], at 5-102, 5105 (4th ed. 2019-2 Supp.) (“Although neither Burton

nor the symbiotic relationship doctrine has been overruled, they have been severely narrowed in scope and

diminished as precedent. Supreme Court decisional

law has given Burton a very narrow interpretation. . . .”);

Laurence H. Tribe, American Constitutional Law § 183, at 1701 n.13 (2d ed. 1988) (noting “Burton’s dwindling precedential power” and suggesting that “[t]he

only surviving explanation of the result in Burton may

be that found in Justice Stewart’s concurrence”); Erwin

Chemerinsky, Constitutional Law § 6.4, at 581 (6th ed.

2019) (“Burton never has been overruled. Yet practically speaking, it may be a relic of an era, before the

Civil Rights Act of 1964, when the Supreme Court tried

to find ways to apply the Constitution to forbid private

discrimination.”).

The court concludes that the FAC does not plausibly allege that Chirlin or the Center acted under color

of state law, as § 1983 requires. Chirlin and the Center,

therefore, are entitled to dismissal of the complaint’s

first three causes of action.

App. 54

B. Whether the Complaint Plausibly Alleges the Center’s Liability Under Monell

The Center seeks dismissal of the first three

causes of action on the alternative ground that the

complaint does not plausibly allege its liability under

Monell.

Under Monell, “[i]t is only when the execution of

the government’s policy or custom inflicts the injury

that the municipality may be held liable under § 1983.”

City of Canton v. Harris, 489 U.S. 378, 385 (1989) (alterations and internal quotation marks omitted). A

§ 1983 plaintiff may establish municipal liability in

one of three ways:

First, the plaintiff may prove that a city employee committed the alleged constitutional

violation pursuant to a formal governmental

policy or a longstanding practice or custom

which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the

individual who committed the constitutional

tort was an official with final policy-making

authority and that the challenged action itself

thus constituted an act of official governmental policy. . . . Third, the plaintiff may prove

that an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it.

Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.

1992) (citations and internal quotation marks omitted).

App. 55

As a threshold matter, the Club contends that Monell does not apply to private entities “that are state

actors” under Burton. ECF 35 at 11-12. The Club, argues, therefore, that it need not satisfy Monell’s policy

or custom requirement. In Tsao v. Desert Palace, Inc.,

698 F.3d 1128, 1138-39 (9th Cir. 2012), however, the

Ninth Circuit squarely held that Monell “applies to

suits against private entities under § 1983.” The Club’s

briefing does not discuss Tsao, let alone distinguish it.

Thus, the court concludes that, to make out a claim

against the Center, the Club must show that any constitutional violation “was caused by an official policy or

custom” of the Center. Id. at 1139.

The Club next contends that this requirement is

satisfied because the complaint “alleges that the discriminatory actions in this case were taken by the executive director and the executive committee of the

Western Justice Center,” and “[t]hese are the individuals and committees through whom the Western Justice

Center acts.” ECF 35 at 12.

Under Monell, however, the question is not

whether the Center acts through these individuals.

The question is whether these individuals possessed

“final policy-making authority” with respect to the

rental of the premises to outside groups during nonbusiness hours. Gillette, 979 F.2d at 1346. Although it

may be that these individuals possessed final policymaking authority, it is also possible – perhaps even

probable – that they possessed only decisionmaking

authority or discretion to act; final policymaking authority may have rested with the Center’s board of

App. 56

directors. FAC ¶ 6. As the Ninth Circuit explained in

Gillette,

a municipality may be held liable for a single

decision by a municipal policymaker. Municipal liability does not attach, however, unless

the decisionmaker possesses final authority to

establish municipal policy with respect to the

action ordered. The fact that a particular official – even a policy-making official – has discretion in the exercise of particular functions

does not, without more, give rise to municipal

liability based on an exercise of that discretion.

Id. at 1349 (citations and internal quotation marks

omitted). In Pembaur v. City of Cincinnati, 475 U.S.

469 (1986), for instance, “the personnel decisions of a

County Sheriff, who ha[d] discretion to hire and fire

employees but [wa]s not the county official responsible

for establishing county employment policy, could not be

attributed to the municipality.” Gillette, 979 F.2d at

1349 (citing Pembaur, 475 U.S. at 484 n.12).

Because the court dismisses the claims against the

Center on a different ground (the under-color-of-statelaw requirement), it need not address whether the

complaint adequately alleges the Center’s liability under Monell. The Club is advised, however, that, should

it elect to file a second amended complaint, it should

more fully and clearly allege – to the extent feasible –

facts supporting the inference that any constitutional

violation was caused by an official policy or custom of

the Center, as required by Tsao.

App. 57

C. Whether the Complaint Fails to State a

Claim Under 1985, Given the Absence of

the City’s Involvement

As noted, the Club’s fourth cause of action alleges

that Chirlin conspired with others to deprive the Club

and its members of their rights under the First Amendment. FAC ¶¶ 56-60. Although the complaint alleges

only that this claim arises under § 1985, the briefing

makes clear that the claim arises under § 1985(3).12 In

the motion to dismiss, Chirlin contends that the complaint fails to state a claim under § 1985(3) because it

does not allege that the City was involved in the alleged conspiracy. ECF 26 at 19. Chirlin relies on United

Brotherhood of Carpenters & Joiners of America, Local

610, AFL-CIO v. Scott, 463 U.S. 825, 830 (1983), where

the Supreme Court held that “an alleged conspiracy to

infringe First Amendment rights is not a violation of

§ 1985(3) unless it is proved that the state is involved

12

42 U.S.C. § 1985(3) states:

If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws; . . . in any case of conspiracy

set forth in this section, if one or more persons engaged

therein do, or cause to be done, any act in furtherance

of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having

and exercising any right or privilege of a citizen of the

United States, the party so injured or deprived may

have an action for the recovery of damages occasioned

by such injury or deprivation, against any one or more

of the conspirators.

App. 58

in the conspiracy or that the aim of the conspiracy is to

influence the activity of the state.”

The Club argues that the state involvement requirement is satisfied because, “[u]nder Burton, the

Western Justice Center and the City of Pasadena are

joint participants in the discrimination.” ECF 35 at 13.

As discussed above, however, the complaint does not

plausibly allege joint action under Burton. The complaint, moreover, does not allege that the City was involved in any way with the decisions of the Center

challenged in this action. Accordingly, the court concludes that the complaint fails to state a claim under

§ 1985(3).

D. Whether the Complaint Fails to State a

Claim Under 1985 Because § 1985(3)

Does Not Apply to Conspiracies Motivated by Political or Religious Animus

Chirlin argues in the alternative that the complaint fails to state a claim under § 1985(3) because “it

alleges, at most, a politically motivated conspiracy,

which Section 1985(3) does not reach.” ECF 26 at 1920.

Under Ninth Circuit case law, § 1985(3) – which

was adopted to address racially motivated conspiracies

– applies to other types of class-based animus where

there has been a “governmental determination that

such a class merits special protection.” Schultz v.

Sundberg, 759 F.2d 714, 718 (9th Cir. 1985). This “require[s] either that the courts have designated the

App. 59

class in question a suspect or quasi-suspect classification requiring more exacting scrutiny or that Congress

has indicated through legislation that the class required special protection.” Id.

It does not appear that the Ninth Circuit has addressed whether § 1985(3) reaches conspiracies motivated by political or religious animus, see Peloza v.

Capistrano Unified Sch. Dist., 37 F.3d 517, 524 (9th Cir.

1994) (“We do not decide whether . . . Establishment

Clause rights[ ] fall within the protection of section

1985(3).”), and other circuits are divided on these questions. Compare Colombrito v. Kelly, 764 F.2d 122, 13031 (2d Cir. 1985) (religiously motivated animus covered), Taylor v. Gilmartin, 686 F.2d 1346, 1357-58 (10th

Cir. 1982) (same), and Ward v. Connor, 657 F.2d 45, 48

(4th Cir. 1981) (same), with Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 124 (5th

Cir. 1996) (religion not covered); also compare Cameron

v. Brock, 473 F.2d 608, 610 (6th Cir. 1973) (politically

motivated animus covered), with Perez-Sanchez v.

Pub. Bldg. Auth., 531 F.3d 104, 108-09 (1st Cir. 2008)

(O’Connor, J.) (political animus not covered).

Because the court dismisses the § 1985(3) claim on

the alternative ground that the complaint does not

plausibly allege state involvement, it need not reach

this question, and it declines to do so.

II.

Summary Judgment

As noted above, the complaint asserts three causes

of action against the City, each of which arises under

App. 60

§ 1983.13 The City’s summary judgment motion argues

that the City is entitled to judgment as a matter of law

on these claims because the Club has not identified any

City “policy or custom” that was the moving force behind any alleged violation of the Club’s constitutional

rights, as required under Monell. ECF 27. In response,

the Club argues, first, that Monell’s policy or custom

requirement does not apply here and, in the alternative, that Monell is satisfied because the City has delegated policymaking authority to the Center. ECF 34.

The court addresses these arguments seriatim.

A. Whether Monell’s Custom or Policy Requirement Applies

The Club contends that it need not satisfy Monell’s

policy or custom requirement; that, so long as it can

establish joint action under Burton, the City is liable

for any constitutional violation committed by the Center, irrespective of any showing that the violation was

caused by an official policy or custom of the City. In the

Club’s view, Burton “held that when a city leases property to a private entity in such a manner, for the purpose of helping to pay for the construction of the public

property, both the private entity and the city are bound

by the requirements of the Fourteenth Amendment.”

13

The City’s summary judgment motion is also directed

against the fourth cause of action, which is predicated on a violation of § 1985(3). But that cause of action is alleged only against

defendant Chirlin. Thus, the court treats that portion of the City’s

summary judgment motion as surplusage and need not address

it.

App. 61

ECF 34 at 7 (emphasis added) (citing Burton, 365 U.S.

at 726). According to the Club, to apply the policy or

custom requirement here, the court would have to hold

that “Burton was somehow impliedly overruled by Monell.” ECF 34 at 12.

This argument misapprehends Burton in several

significant respects. First, Burton was decided 17 years

before Monell. It is therefore unremarkable that Burton did not discuss Monell’s policy or custom requirement. Second, Burton was not a § 1983 case, and it did

not involve a municipal entity: the governmental actor

in Burton – the Wilmington Parking Authority – was a

state agency. See Burton, 365 U.S. at 716 (“The parking

building is owned and operated by the Wilmington

Parking Authority, an agency of the State of Delaware. . . .”); id. at 717, 724, 725, 726 (same). Thus, even

if Monell had been on the books in 1961, it would have

had no application to the case. Third, even if the parking authority had been a municipal entity, Burton did

not address the liability of the parking authority. The

only issue the Court decided was whether the restaurant could be held liable. See id. at 726 (“[W]hat we

hold today is that when a State leases public property

in the manner and for the purpose shown to have been

the case here, the proscriptions of the Fourteenth

Amendment must be complied with by the lessee as certainly as though they were binding covenants written

into the agreement itself.” (emphasis added)).

For all of these reasons, the Club errs by arguing

that Burton provides a way to establish municipal liability under § 1983 without having to demonstrate

App. 62

that the alleged constitutional violation was caused by

a municipal policy or custom. Burton did not address

municipal liability or § 1983. Accordingly, the court

does not read Burton as establishing an exception to

Monell.

Even assuming, however, that Burton’s joint action test provides an alternative path for establishing

municipal liability under § 1983, the court is not persuaded that such an exception to Monell would apply

here. In addressing Chirlin and the Center’s motion to

dismiss, the court explained why, based on the Club’s

allegations, the complaint does not establish joint action or a symbiotic relationship between the City and

the Center under Burton. The court reaches the same

conclusion upon its review of the evidence in the

summary judgment record. The material facts in the

summary judgment record – which are materially indistinguishable from the allegations in the complaint

– are undisputed. ECF 27-1; 34-1. Accordingly, the

court may determine as a matter of law whether the

Center and the City were joint actors under Burton.

See Han v. Mobil Oil Corp., 73 F.3d 872, 875 (9th Cir.

1995) (“When a mixed question of fact and law involves

undisputed underlying facts, summary judgment is appropriately granted.”). For the reasons discussed in addressing the motion to dismiss, the court concludes as

a matter of law that the Center and the City were not

joint actors under Burton. The facts and circumstances

supporting a finding of joint action here simply are not

as compelling as those in Burton, and the court is not

prepared to read Burton expansively – extending it to

App. 63

a weaker set of facts – when the Supreme Court and

the Ninth Circuit have consistently read the case narrowly.

In sum, the court concludes that Monell applies

here because, first, Burton does not establish an exception to Monell’s policy or custom requirement and, second, even if such an exception existed, it would not be

satisfied here because the summary judgment record

does not support a finding of joint action under Burton.

The Club, therefore, must show that any alleged constitutional violation was caused by an official policy or

custom of the City.

B. Whether the Policy or Custom Requirement Is Satisfied Here

As noted, a § 1983 plaintiff can satisfy Monell’s

policy or custom requirement in one of three ways, including, as relevant here, by proving “that the individual who committed the constitutional tort was an

official with ‘final policymaking authority’ and that the

challenged action itself thus constituted an act of official governmental policy.” Gillette, 979 F.2d at 1346.

Final policymaking authority, moreover, may be “delegated by an official who possesses such authority.”

Christie v. Iopa, 176 F.3d 1231, 1236 (9th Cir. 1999)

(quoting City of St. Louis v. Praprotnik, 485 U.S. 112,

124 (1988) (plurality opinion)).

The Club relies on this delegation theory here, arguing that the alleged constitutional violations were

caused by a City policy because “[t]he City delegated to

App. 64

the Western Justice Center the authority to make final

policy regarding rental of the City-owned Maxwell

House property during nonbusiness hours.” ECF 34

at 15. The Club contends that the City delegated this

authority to the Club because the lease agreement

“gave the Western Justice Center total discretion over

whether and to whom the property could be rented

during nonbusiness hours.” ECF 34 at 15.

The Court agrees with the Club that the Center,

and not the City, possesses final policymaking authority regarding whether and to whom the Maxwell

House may be rented during non-business hours. The

Center’s policies with respect to these rentals are not

constrained by City policies or subject to the City’s review. See Christie, 176 F.3d at 1236-37 (citing Praprotnik, 485 U.S. at 127). The Center, therefore, is the

final policymaker with respect to this rental policy.

That, however, is not the end of the inquiry. To satisfy Monell, the Club also must establish that the Center’s policies are those of the City – i.e., that when the

Center establishes policy governing the rental of the

premises, it is exercising policymaking authority that

the City has delegated to the Center and that it is

therefore establishing policy on behalf of the City. The

court is not persuaded that the Club has made this

showing.

There is no question that, when the City acquired this property and leased it to the Center, it

conveyed to the Center the right and authority to

rent the premises to outside groups. The record does

App. 65

not suggest, however, that this was anything other

than a conveyance of a property interest, rather than

the delegation of City policymaking authority. Compare Delegate, Black’s Law Dictionary (11th ed. 2019)

(“To send as a representative with authority to act; to

depute”; “To give part of one’s power or work to someone in a lower position within one’s organization <delegated legislative functions>.”), with Conveyance, Black’s

Law Dictionary (“The voluntary transfer of a right or

of property.”), and Lease, Black’s Law Dictionary (“A

contract by which a rightful possessor of real property

conveys the right to use and occupy the property in

exchange for consideration, usu. rent.” (emphases

added)).

Case law explains that delegation occurs when a

city delegates a city function to a private party, something that did not occur here: “for an official’s acts to

constitute municipal policy, it must be demonstrated

that policymaking authority for a particular city function was delegated to that official.” Hammond v.

County of Madera, 859 F.2d 797, 802 (9th Cir. 1988)

(emphasis added), abrogated on other grounds as

stated in L.W. v. Grubbs, 92 F.3d 894, 898 (9th Cir.

1996). In King v. Kramer, 680 F.3d 1013, 1020 (7th Cir.

2012), and Ancata v. Prison Health Services, Inc., 769

F.2d 700, 704-05 & n.9 (11th Cir. 1985), for example,

the delegation doctrine applied where counties delegated to private entities their duty to provide medical care to county jail inmates. Similarly, in Herrera

v. County of Santa Fe, 213 F. Supp. 2d 1288, 1292

(D.N.M. 2002), the delegation doctrine applied where

App. 66

the county delegated operation of the county detention

center to a private entity. Alternatively, delegation may

occur when a municipality contracts with a private

party to manage municipal property. Cf. Manhattan

Cmty. Access Corp., 139 S. Ct. at 1933 (suggesting that

state action would exist if a private entity was “simply

managing government property on behalf of ” a city).

Here, the evidence establishes only that the City

conveyed a property interest to the Center. Under the

lease, the Center acquired the right to rent the premises to outside groups during non-business hours.

Thus, when the Center rents the premises to outside

groups, it is exercising its own authority as the holder

of a possessory interest in the property, and it is renting out the premises on its own behalf. There is no evidence that policymaking authority for a particular

city function was delegated to the Center, that the Center is exercising City authority when it rents out the

premises, or that the Center is renting out the premises on the City’s behalf. As noted earlier, the Center’s

activities are not City programs managed by the Center on the City’s behalf; they are the Center’s own programs, operated by the Center on its own behalf, with

the limited, albeit not insubstantial, support of the

City.

In sum, because the undisputed facts show that

the Center was not delegated final policymaking authority by the City, the Club cannot establish that the

alleged constitutional violations were caused by an official policy or custom of the City, as required under

App. 67

Monell. The City, therefore, is entitled to summary

judgment on the Club’s § 1983 claims.

CONCLUSION

Chirlin and the Center’s motion to dismiss the

first amended complaint (ECF 26) is granted. The Club

is granted 30 days’ leave to file a second amended complaint as against these defendants. See Lopez v. Smith,

203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[I]n dismissing for failure to state a claim under Rule 12(b)(6),

‘a district court should grant leave to amend even if no

request to amend the pleading was made, unless it determines that the pleading could not possibly be cured

by the allegation of other facts.’ ” (quoting Doe v. United

States, 58 F.3d 494, 497 (9th Cir. 1995)).14 Alternatively,

the Club may notify the court that it does not intend to

amend, or if the Club fails to file a second amended

complaint within the time allowed, judgment shall be

entered in favor of Chirlin and the Center in accordance herewith.

14

The Ninth Circuit recently held that the plaintiff-appellant had “waived its right to amend” its complaint because “it

never asked the district court for such relief.” City of San Juan

Capistrano v. Cal. Pub. Util. Comm’n, 937 F.3d 1278, 1282 (9th

Cir. 2019). That case involved waiver of the right when it is raised

for the first time on appeal. Waiver has not been raised in this

case and it remains to be seen to what extent San Juan Capistrano affects, in district court, a party’s right to amend recognized in Smith v. Lopez.

App. 68

The City’s motion for summary judgment (ECF

27) is granted.15 Partial judgment in favor of the City

shall be entered.

Dated: December 30, 2019.

/s/ A. Wallace Tashima

A. WALLACE TASHIMA

United States Circuit Judge

Sitting by Designation

15

Although, in limited circumstances, the Court has the discretion to permit a complaint to be amended after the grant of

summary judgment, see Nguyen v. United States, 792 F.2d 1500,

1503 (9th Cir. 1986) (“Granting leave to amend after summary

judgment is . . . allowed at the discretion of the trial court”), the

Club has not sought further leave to amend. Moreover, it appears

that further amendment with respect to the City would be futile.

App. 69

ANTHONY T. CASO, No. 088561

Center for Constitutional Jurisprudence

c/o Chapman Univ. Fowler Sch. of Law

One University Drive

Orange, CA 92806

Telephone: (916) 601-1916

Fax: (916) 307-5164

E-Mail: tom@caso-law.com

Attorney for Plaintiffs

Pasadena Republican Club

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

PASADENA REPUBLICAN ) Case No. 2:18-cv-09933

CLUB, a General Purpose )

SJO (AFMx)

Political Committee,

) FIRST AMENDED

on behalf of itself and

) COMPLAINT FOR

its members

) INJUNCTIVE AND

)

Plaintiffs,

DECLARATORY

) RELIEF AND DAMAGES

v.

) (42 U.S.C. §§1983, 1985)

)

WESTERN JUSTICE

DEMAND FOR

)

CENTER, a California

JURY TRIAL

)

nonprofit corporation,

(Filed Feb. 5, 2019)

JUDITH CHIRLIN, and )

)

CITY OF PASADENA,

)

Defendants.

)

JURISDICTION

1. This Court has jurisdiction to hear this claim

pursuant to 28 U.S.C. §1331 (federal question) since

App. 70

the claims asserted herein arise out of the laws of the

United States (42 U.S.C. §§1983, 1985) and the Speech

and Religion Clauses of the First Amendment to the

United States Constitution.

VENUE

2. Venue is proper in this district pursuant to 13

U.S.C. §1391(c)(1) because all defendants are entities

that are subject to this Court’s personal jurisdiction.

The CITY OF PASADENA is a government body that

is located within this district. The WESTERN JUSTICE CENTER is a nonprofit corporation that is physically located in the CITY OF PASADENA. JUDITH

CHIRLIN served as Executive Director of the WESTERN JUSTICE CENTER at the time of the events giving rise to this litigation and, on information at belief,

continues to maintain an office address in the City of

Los Angeles, California. At the time of the events giving rise to these events, CHIRLIN maintained an office

at the WESTERN JUSTICE CENTER in Pasadena,

California.

INTRODUCTION

3. This is civil rights claim pursuant to 42 U.S.C.

§§ 1983 and 1985 for declaratory and injunctive relief

and money damages. The WESTERN JUSTICE CENTER, managing property owned by the CITY OF PASADENA, canceled an event that was to be held at that

property because JUDITH CHIRLIN, executive director of WESTERN JUSTICE CENTER, and members of

App. 71

the Center’s executive committee disagreed with the

viewpoint of a religious organization with which the

speaker was affiliated. However, as state actor, managing the public property of the CITY OF PASADENA for

public purposes of the CITY, WESTERN JUSTICE

CENTER “was obliged under the Free Exercise Clause

to proceed in a manner neutral toward and tolerant of

. . . [the] religious beliefs” of the speaker chosen by the

PASADENA REPUBLICAN CLUB. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 135

S.Ct. 1719, 1731 (2018). Further, when it opens a public

facility for community meetings, even on a limited basis, neither the CITY OF PASADENA nor THE WESTERN JUSTICE CENTER may discriminate against

groups based on the viewpoint of the speaker or the

group. Access to even nonpublic forums cannot be limited based a public officials’ opposition to the views of

the speaker or the organization. Cornelius v. NAACP

Legal Defense and Educational Fund, 473 U.S. 788, 800

(1985); Perry Education Assn. v. Perry Local Educators’

Assn., 460 U.S. 37, 46 (1983). The cancellation of this

event based on the speaker’s viewpoint and religious

views is a clear violation of well-settled law concerning

the Freedom of Speech and Free Exercise of Religion

guaranteed by the First Amendment of the United

States Constitution. Further, the adopted policy of the

WESTERN JUSTICE CENTER to discriminate among

groups based on political viewpoint regarding rental

of the property is also a clear violation of well-settled

law concerning the Freedom of Speech guaranteed

by the First Amendment of the United States Constitution. JUDITH CHIRLIN and members of the staff

App. 72

and executive committee of the WESTERN JUSTICE

CENTER conspired to deprive the PASADENA REPUBLICAN CLUB and its members of their civil

rights to be free from religious and political viewpoint

discrimination when they cancelled the contract for

the Club to hold an event just hours before the event

was to take place, and refused to rent to the Club for

future events.

PARTIES

4. The PASADENA REPUBLICAN CLUB is the

oldest continuously active Republican Club in America. It is a voluntary membership organization that

was founded in 1884 by Colonel Jabez Banbury, one of

the early settlers of Pasadena and a veteran of the

Civil War. The club exists to allow its members to join

together to elect candidates to federal, state, and local

office and to provide a medium for the expression of

political ideals and principles of the membership. This

includes joining together to support the election of

President Trump as the republican candidate for President of the United States and to support the election

of other republican candidates to local, state, and national office. To this end, the club invites speakers to

its meetings to educate members on the issues of the

day. It is affiliated with the California Republican

Party and the Republican Party of Los Angeles and

it independently files reports with the California

Fair Political Practices Commission as a General Purpose Committee with the sub-designation or Political

App. 73

Committee/Central Committee. It brings this action on

behalf of itself and its members.

5. The CITY OF PASADENA is a city in the

State of California that exercises government powers

within the city limits. The City owns the property located at 55-85 South Grand Avenue, Pasadena, which

includes the Maxwell House where the events that are

the subject of this dispute were scheduled to take

place.

6. The WESTERN JUSTICE CENTER is a

501(c)(3) nonprofit corporation. It was formed by state

and federal judges and prominent attorneys. It continues to name as officers and members of its board

judges that sit on the Los Angeles Superior Court,

United States Bankruptcy Court, the United States

Federal District Court for the Central District of California, and the United States Court of Appeals for

the Ninth Circuit. The WESTERN JUSTICE CENTER

leases, from the CITY OF PASADENA, property located within the City located at 55-85 South Grand Avenue, Pasadena, California.

7. JUDITH CHIRLIN was the executive director

of the WESTERN JUSTICE CENTER at the time of

the events at issue in this action.

App. 74

FACTS

WESTERN JUSTICE CENTER

AND THE CITY OF PASADENA

8. On or about April 4, 1989, WESTERN JUSTICE CENTER and the Pasadena Surplus Property

Authority entered into a 55-year lease for the WESTERN JUSTICE CENTER to occupy property owned by

the Authority that includes the Maxwell House in the

City of Pasadena. The properties are identified in the

lease as 55-85 South Grand Avenue, Pasadena. WESTERN JUSTICE CENTER has an option under the

lease to extend the lease for an additional 44 years.

9. The Surplus Property Authority was a public

corporation formed by action of the CITY OF PASADENA pursuant to state law for the purpose of acquiring surplus property of the United States for the

benefit of the people of the CITY OF PASADENA. The

City Council of the CITY OF PASADENA was the governing body of this Surplus Property Authority and the

Mayor of the CITY OF PASADENA was the presiding

officer.

10. The purpose of the lease, as stated in that

document, was to benefit the citizens of Pasadena

through “a center for the study of dispute resolution

and the administration of justice, to provide additional

employment and revenues to the local economy, to provide for improvements in both local, regional, national,

and international components of the legal system, to

provide a forum for educational research, and for the

purpose of insuring the restoration and historical

App. 75

perseveration of the premises.” An additional purpose

of the lease was to insure the restoration and historic

preservation of the property.

11. The lease expressly stated that it was not for

commercial purposes and imposed limits on the types

of entities that could occupy the premises. Paragraph

5.1 of the lease specified that the property could only

be used “for the purposes described in the Plan of Public Use for Surplus Property.” The lease expressly prohibited subletting to lawyers offering services for

profit.

12. The Plan of Public Use for Surplus Property

referred to in the lease limited the subletting of the

property to “nonprofits with law-related purposes” particularly regarding judicial administration, alternative

dispute resolution, continuing education of the bar, and

justice reform. The lease required WESTERN JUSTICE CENTER to notify the CITY OF PASADENA of

any sublease and expressly prohibited any sublessee to

use the property for any use not authorized in the lease

between WESTERN JUSTICE CENTER and the CITY

OF PASADENA.

13. The lease also authorized the WESTERN

JUSTICE CENTER to use the premises for “community meetings and other purposes during non-business

hours.”

14. The lease was amended in 1990 and again

in 1993 by the Surplus Property Authority to alter the

improvement schedule for the property. On July 16,

1994, the property was transferred to the City of

App. 76

Pasadena subject to the lease. The City executed a

third amendment to the lease on July 18, 1994 to provide up to $458,000 to WESTERN JUSTICE CENTER

for tenant improvements on the property and fixing

the rent at a rate to repay the amount used for tenant

improvements. None of the restrictions on use of the

property were altered in the amendments to the lease,

nor did the amendments disclaim the public purpose of

the lease.

15. The CITY OF PASADENA used its government authority to borrow money that was provided to

WESTERN JUSTICE CENTER to complete improvements on the property. WESTERN JUSTICE CENTER’s rent payments to the CITY OF PASADENA

were calculated to repay the loans. All of these loans

have now been repaid and the current rent through the

end of the lease is $1.00 per month.

THE CONTRACT WITH THE

PASADENA REPUBLICAN CLUB

16. At the time of the events in question, the

WESTERN JUSTICE CENTER rented the property in

question for after-hours use to the PASADENA REPUBLICAN CLUB and other groups for meetings.

17. In January or February of 2017, Lynn Gabriel, president of the PASADENA REPUBLICAN

CLUB, executed a contract with the WESTERN JUSTICE CENTER to rent the Maxwell House for an event

on April 20, 2017, for a rental fee of $190. On or about

App. 77

February 17, 2017, the PASADENA REPUBLICAN

CLUB made the final payment for the rental.

18. After the contract for this rental was concluded, JUDITH CHIRLIN informed the PASADENA

REPUBLICAN CLUB that the executive committee of

the WESTERN JUSTICE CENTER would no longer

rent the Maxwell House “to political groups – one side

or the other” and thus the property would not be available for rental to the PASADENA REPUBLICAN

CLUB in May. At the time JUDITH CHIRLIN and

WESTERN JUSTICE CENTER announced this “policy,” they were subleasing a portion of the CITY OF

PASADENA property located at 55-85 South Grand

Avenue to the League of Women Voters of Pasadena

Area which describes itself as a “political organization

and which opposes President Trump, the republican

President supported by PASADENA REPUBLICAN

CLUB. Subsequent to the adoption of this new “policy,”

WESTERN JUSTICE CENTER allowed League of

Women Voters of Pasadena Area to use a portion of the

Maxwell House property for an event at which the

League discussed its opposition to President Trump.

On information and belief, the CITY OF PASADENA

was aware of the sublease of city property to the

League of Women Voters of Pasadena Area by the

WESTERN JUSTICE CENTER at the time of these

events.

19. The rental contract for the April 20, 2017

event noted that the property was owned by the CITY

OF PASADENA. The contract further required a disclaimer to be printed on any flyer or publicity for the

App. 78

event with the words: “The Western Justice Center/

Maxwell House does not endorse the views expressed

by this organization or its speakers.” The contract was

signed by Lynn Gabriel for the PASADENA REPUBLICAN CLUB and JUDITH CHIRLIN on behalf of the

WESTERN JUSTICE CENTER. CHIRLIN was the

Executive Director of the WESTERN JUSTICE CENTER at that time. The PASADENA REPUBLICAN

CLUB advertisements for the April 20 event complied

with this notice requirement.

20. At or before the time she executed this contract for the rental of Maxwell House from WESTERN

JUSTICE CENTER, Lynn Gabriel, president of the

PASADENA REPUBLICAN CLUB, notified JUDITH

CHIRLIN, the then Executive Director of the WESTERN JUSTICE CENTER, that the planned speaker for

the event was Dr. John Eastman.

21. Dr. Eastman is the former dean of the law

school at Chapman University and a nationally recognized expert on Constitutional Law. He is currently the

Henry Salvatori Professor of Law and Community Service at the Chapman University, Dale E. Fowler School

of Law. He is also the Director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with The Claremont Institute, through which he

has participated in more than 140 cases of constitutional significance before the Supreme Court of the

United States. He has a Ph.D. in Government with

fields of concentration in Political Philosophy, American Government, Constitutional Law, and International Relations from the Claremont Graduate School.

App. 79

He speaks on issues of law and politics on national radio and television programs as well as to civic groups

and law schools across the nation.

22. The PASADENA REPUBLICAN CLUB collects a fee from its members at meetings, and the

speaker for the meeting is a draw to help the PASADENA REPUBLICAN CLUB to raise money and defer

the cost of the rental of the venue for the meeting.

23. The PASADENA REPUBLICAN CLUB advertised the planned April 20, 2017 event listing Dr.

Eastman as the speaker. The publicity noted that the

cost to attend would be $10.00 for members. In accordance with the requirements of the contract, the publicity of the event contained the following disclaimer:

“The Western Justice Center/Maxwell House does not

endorse the views expressed by this organization or its

speakers.”

THE WESTERN JUSTICE CENTER CANCELS

THE CONTRACT AT THE LAST-MINUTE

24. At 3:43 pm on the day of the event, the then

Executive Director of WESTERN JUSTICE CENTER,

JUDITH CHIRLIN, sent an email to Lynn Gabriel, the

president of the PASADENA REPUBLICAN CLUB to

state that WESTERN JUSTICE CENTER was cancelling the event that was scheduled to take place less

than three hours from the time of the email. CHIRLIN

explained that “While I knew that Prof Eastman was

a professor and author, we learned just today that he

is the President of the National Organization for

App. 80

Marriage (NOM). NOM’s positions on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of the Western Justice Center. . . .

WJC works to improve campus climates with a special

focus on LGBT bias and bullying. We work to make

sure that people recognize and stop LGBT bullying.

Through these efforts we have built a valuable reputation in the community, and allowing your event in our

facility would hurt our reputation in the community.”

25. The National Organization for Marriage is a

national organization that works to defend marriage

and the faith communities that sustain it at the local,

state, and national levels. The ideals of the organization are rooted in both social science and the religious

beliefs of its members. The organization advocates for

marriage as a relationship between one man and one

woman in the courts and before the legislative bodies

at the local, state, and national level. It does not advocate bias of any type and it does not engage in bullying.

26. Lynn Gabriel immediately placed a telephone

call to JUDITH CHIRLIN in an attempt to reach an

accommodation. Gabriel noted that since CHIRLIN

had told Gabriel that the PASADENA REPUBLICAN

CLUB would not be allowed to rent this space in the

future that CENTER should allow this meeting to take

place as planned. CHIRLIN responded that she and

the executive committee had discussed the matter and

the executive committee would not consent to allow the

meeting to be held at the Maxwell House.

App. 81

27. By waiting until 3:43 pm to cancel the event

scheduled for 6:30 pm that evening, CHIRLIN, acting

on behalf of WESTERN JUSTICE CENTER and the

CITY OF PASADENA, sought to ensure that the event

could not be held at all and to impose the maximum

level of inconvenience for the PASADENA REPUBLICAN CLUB.

28. By canceling this event at the last minute

solely because they disagreed with the political and religious beliefs of the speaker, CHIRLIN, the executive

committee, and WESTERN JUSTICE CENTER acted

with malice, oppression, intending to harm PASADENA

REPUBLICAN CLUB and its members for harboring

beliefs contrary to those promoted by WESTERN JUSTICE CENTER. These actions constitute willful and

wanton misconduct. As a retired California Judge,

CHIRLIN is presumably aware of the provisions of the

United States Constitution and was therefore aware

that the action she took on behalf of the WESTERN

JUSTICE CENTER was unconstitutional. Further, the

Board and, on information and belief, the executive

committee of the WESTERN JUSTICE CENTER include judges of the United States District Court for the

Central District of California and the United States

Circuit Court of Appeals for the Ninth Circuit, who

likewise are aware of the provisions of the United

States Constitution and know that discrimination on

the basis of political viewpoint and religious belief in

the rental of public property violates the United States

Constitution unless supported by a compelling governmental interest. JUDITH CHIRLIN’s, the WESTERN

App. 82

JUSTICE CENTER’s, and its executive committee’s

hatred of contrary political viewpoints and religious

beliefs is not a compelling governmental interest.

29. Because of the last-minute cancellation of

the contract to use the Maxwell House property, PASADENA REPUBLICAN CLUB had trouble finding an

alternate facility to hold its program. After a frantic

search, PASADENA REPUBLICAN CLUB was able to

book the University Club of Pasadena for the event

that night, but at a cost of $500 – more than double the

cost of the agreed rental price for the Maxwell House

30. After a substitute facility that could accommodate the meeting that evening was located and

booked, there was no time to alert all the members of

PASADENA REPUBLICAN CLUB about the change

in meeting location. This required Lynn Gabriel, president of PASADENA REPUBLICAN CLUB, to stand

outside the Maxwell House on the night of the event to

redirect PASADENA REPUBLICAN CLUB members

to the new venue, causing her to miss the event herself.

31. Not all of PASADENA REPUBLICAN CLUB

members made it to the new venue. Attendance at the

event at the University Club was one-third below average attendance. PASADENA REPUBLICAN CLUB

was planning on a higher than average attendance because of Dr. Eastman’s national reputation and frequent appearances on national television and radio

programs.

App. 83

First Cause of Action

Viewpoint Discrimination in

violation of the First Amendment

and 42 U.S.C. §1983

(All Defendants)

32. Plaintiffs restate the allegations of paragraphs 1-31, inclusive, as if fully restated in this Cause

of Action.

33. Maxwell House, the property leased by the

WESTERN JUSTICE CENTER, is owned by the CITY

OF PASADENA and is included in the property identified as 55-85 South Grand Avenue, Pasadena. The

property is leased to WESTERN JUSTICE CENTER

to promote the government purposes of the CITY OF

PASADENA. In operating and subletting the property,

WESTERN JUSTICE CENTER and JUDITH CHIRLIN,

its Executive Director at the time of the events giving

rise to this complaint, are “state actors” for purposes of

the United States Constitution and 42 U.S.C. §1983

and the CITY OF PASADENA is responsible for discrimination by the WESTERN JUSTICE CENTER in

the operation of this property

34. Public property opened for lease by community groups must be available without regard to the

viewpoint of the organization or the speaker.

35. PASADENA REPUBLICAN CLUB, and its

members, had a right under the First Amendment to

use the Maxwell House on the same basis as other

organizations without regard to its viewpoint or the

viewpoint of the speakers it chose for its event.

App. 84

36. WESTERN JUSTICE CENTER, JUDITH

CHIRLIN, and the CITY OF PASADENA discriminated against PASADENA REPUBLICAN CLUB based

on the viewpoint of the speaker it chose for its event,

thereby denying PASADENA REPUBLICAN CLUB

and its members of their rights under the First Amendment.

37. The CITY OF PASADENA permitted WESTERN JUSTICE CENTER to engage in viewpoint discrimination in the rental of city owned property that

was leased to WESTERN JUSTICE CENTER for government purposes.

38. WESTERN JUSTICE CENTER, JUDITH

CHIRLIN, and the CITY OF PASADENA violated the

rights of PASADENA REPUBLICAN CLUB and its

members under 42 U.S.C. §1983.

39. WESTERN JUSTICE CENTER and JUDITH CHIRLIN acted with malice, oppression, and

wanton and intentional disregard of the rights of PASADENA REPUBLICAN CLUB and its members when

it cancelled this contract based on the political viewpoint of the scheduled speaker.

Wherefore, plaintiff prays for judgment as follows.

App. 85

Second Cause of Action

Religious Belief Discrimination in

violation of the First Amendment

And 42 U.S.C. §1983

(All defendants)

40. Plaintiffs restate the allegations of paragraphs 1-39, inclusive, as if fully restated in this Cause

of Action.

41. Maxwell House, the property leased by the

WESTERN JUSTICE CENTER, is owned by the CITY

OF PASADENA and is included in the property identified as 55-85 South Grand Avenue, Pasadena. The

property is leased to WESTERN JUSTICE CENTER

to promote the government purposes of the CITY OF

PASADENA. In operating and subletting the property,

WESTERN JUSTICE CENTER and JUDITH CHIRLIN,

its Executive Director at the time of the events giving

rise to this complaint, are “state actors” for purposes of

the United States Constitution and 42 U.S.C. §1983

and the CITY OF PASADENA is responsible for discrimination by the WESTERN JUSTICE CENTER in

the operation of this property

42. Public property opened for rental or lease by

community groups must be available without regard to

the viewpoint of the organization.

43. PASADENA REPUBLICAN CLUB, and its

members, had a right under the First Amendment to

use the Maxwell House on the same basis as other organizations without regard to its viewpoint.

App. 86

44. In adopting a policy that was applied only to

PASADENA REPUBLICAN CLUB and not other political organizations subleasing city property from the

WESTERN JUSTICE CENTER, JUDITH CHIRLIN,

and the CITY OF PASADENA discriminated against

PASADENA REPUBLICAN CLUB based on the viewpoint of the CLUB and its members, thereby denying

PASADENA REPUBLICAN CLUB and its members of

their rights under the First Amendment.

45. The CITY OF PASADENA permitted WESTERN JUSTICE CENTER to engage in viewpoint discrimination in the rental of city owned property that

was leased to WESTERN JUSTICE CENTER for government purposes.

46. WESTERN JUSTICE CENTER, JUDITH

CHIRLIN, and the CITY OF PASADENA violated the

rights of PASADENA REPUBLICAN CLUB and its

members under 42 U.S.C. §1983.

47. WESTERN JUSTICE CENTER and JUDITH CHIRLIN acted with malice, oppression, and

wanton and intentional disregard of the rights of PASADENA REPUBLICAN CLUB and its members when

it adopted a policy prohibiting the PASADENA REPUBLICAN CLUB from renting the property while the

WESTERN JUSTICE CENTER continued to sublease

a portion of the property to a political organization

with a different viewpoint.

Wherefore, plaintiff prays for judgment as follows.

App. 87

Third Cause of Action

Religious Belief Discrimination in

violation of the First Amendment

and 42 U.S.C. §1983

(All defendants)

48. Plaintiffs restate the allegations of paragraphs 1-47, inclusive, as if fully restated in this Cause

of Action.

49. Maxwell House, the property leased by the

WESTERN JUSTICE CENTER, is owned by the CITY

OF PASADENA. The property is leased to WESTERN

JUSTICE CENTER to promote the government purposes of the CITY OF PASADENA. In operating and

subletting the property, WESTERN JUSTICE CENTER and JUDITH CHIRLIN, its Executive Director at

the time of the events giving rise to this action, are

“state actors” for purposes of the First Amendment and

42 U.S.C. §1983 and the CITY OF PASADENA is responsible for discrimination by WESTERN JUSTICE

CENTER in the operation of the property

50. Public property opened for rental or lease by

community groups must be available without regard to

the religious viewpoint of the organization or the

speaker. The CITY OF PASADENA may not discriminate against community groups based on the religious

beliefs of speakers.

51. PASADENA REPUBLICAN CLUB, and its

members, had a right under the Free Exercise Clause

of the First Amendment to use the Maxwell House on

the same basis as other organizations without regard

App. 88

to the religious viewpoint of the speakers it chose for

its event.

52. WESTERN JUSTICE CENTER, JUDITH

CHIRLIN, and the CITY OF PASADENA discriminated against PASADENA REPUBLICAN CLUB, and

its members, based on the religious viewpoint of the

speaker it chose for its event, thereby denying PASADENA REPUBLICAN CLUB and its members of their

rights under the Free Exercise Clause of the First

Amendment.

53. The CITY OF PASADENA permitted WESTERN JUSTICE CENTER to engage in religious viewpoint discrimination in the subletting of city owned

property that was leased to WESTERN JUSTICE

CENTER for government purposes and is responsible

for discrimination by WESTERN JUSTICE CENTER

in the operation of the property

54. WESTERN JUSTICE CENTER, JUDITH

CHIRLIN, and the CITY OF PASADENA violated the

rights of PASADENA REPUBLICAN CLUB and its

members under 42 U.S.C. §1983.

55. WESTERN JUSTICE CENTER and JUDITH CHIRLIN acted with malice, oppression, and

wanton and intentional disregard of the rights of PASADENA REPUBLICAN CLUB and its members when

it cancelled this contract based on the political viewpoint of the scheduled speaker.

Wherefore, plaintiff prays for judgment as follows.

App. 89

Fourth Cause of Action

Conspiracy to Deny Civil Rights to Freedom

from Political Viewpoint and Religious Belief

Discrimination pursuant to 42 U.S.C. §1985

(Judith Chirlin)

56. Plaintiffs restate the allegations of paragraphs 1-55, inclusive, as if fully restated in this Cause

of Action.

57. On information and belief, JUDITH CHIRLIN

conspired with members of the staff and executive

committee of the WESTERN JUSTICE CENTER to

deprive PASADENA REPUBLICAN CLUB and its

members of civil rights – specifically to hear from a

speaker affiliated with a religious organization that

opposed same-sex marriage and the right to be treated

equally with other political organizations seeking rent

facilities leased by the CITY OF PASADENA to the

WESTERN JUSTICE CENTER.

58. Through enactment of the Religious Freedom

Restoration Act and the Religious Land Use and Institutionalized Persons Act, Congress has recognized that

state governments infringe on religious liberties of individuals with unpopular religious views. The United

States Supreme Court has also recognized that individuals with religiously-based opposition to samesex marriages are the target of state actions seeking

to suppress that opposition. Masterpiece Cakeshop,

Ltd. v. Colorado Civil Rights Comm’n, 138 S.Ct. 1719,

1732 (2018); Obergefell v. Hodges, 135 S.Ct. 2584, 2607

App. 90

(2015). This religious discrimination is seen in numerous cases across the country including Masterpiece

Cakeshop, supra, Arlene’s Flowers, Inc. v. Washington,

138 S.Ct. 2671 (2018) (granting certiorari and remanding case for further consideration), Klein v. Oregon Bureau of Labor and Industries, Supreme Court No. 18547 (petition for writ of certiorari pending), to name

just a few.

59. The federal courts have long recognized that

individuals exercising state and local power infringe

on the rights of individuals and groups who profess political beliefs contrary to the beliefs of those in power.

E.g., Hefferman v. City of Paterson, N.J., 136 S.Ct. 1412,

1416 (2016); Rutan v. Republican Party of Illinois, 497

U.S. 62, 79 (1990); Elrod v. Burns, 427 U.S. 347, 355

(1976). Thus, the courts have recognized the need to

protect individuals and groups from discrimination

because of their political beliefs. This problem is especially acute in California where more than threefourths of the state legislative seats are held by Democrats and where the Democratic Attorney General

and the current and immediate past Democratic Governors have announced opposition to the Republican

President of the United States as a policies of their administrations.

60. By taking the actions alleged herein, JUDITH CHIRLIN, the executive committee, members of

the staff, and WESTERN JUSTICE CENTER conspired in violation of 42 U.S.C. §1985 to deny civil liberties guaranteed by the First Amendment to the

App. 91

United States Constitution to PASADENA REPUBLICAN CLUB and its members.

Wherefore, plaintiff prays for judgment as follows.

PRAYER FOR RELIEF

WHEREFORE,

PASADENA

CLUB prays for relief as follows

REPUBLICAN

1. A declaration that the CITY OF PASADENA

violated the rights of the PASADENA REPUBLICAN

CLUB and its members to Freedom of Speech under

the First Amendment and 42 U.S.C. §1983 when JUDITH CHIRLIN and WESTERN JUSTICE CENTER

cancelled a facility use contract based on the viewpoint

of the speaker chosen for the event.

2. A declaration that JUDITH CHIRLIN and

WESTERN JUSTICE CENTER violated the rights of

the PASADENA REPUBLICAN CLUB and its members to Freedom of Speech under the First Amendment

and 42 U.S.C. §1983 when it cancelled a facility use

contract based on the viewpoint of the speaker chosen

for the event.

3. A declaration that JUDITH CHIRLIN and

WESTERN JUSTICE CENTER acted with malice, oppression, and wanton and intentional disregard for the

law when it cancelled the facility use contract PASADENA REPUBLICAN CLUB based on the viewpoint

of the speaker chosen for the event.

App. 92

4. A declaration that the CITY OF PASADENA

violated the rights of the PASADENA REPUBLICAN

CLUB and its members to Free Exercise of Religion

under the First Amendment and 42 U.S.C. §1983 when

JUDITH CHIRLIN and WESTERN JUSTICE CENTER cancelled a facility use contract based on the religious viewpoint of the speaker chosen for the event.

5. A declaration that JUDITH CHIRLIN and

WESTERN JUSTICE CENTER violated the rights of

the PASADENA REPUBLICAN CLUB and its members to Free Exercise of Religion under the First

Amendment and 42 U.S.C. §1983 when it cancelled a

facility use contract based on the religious viewpoint of

the speaker chosen for the event.

6. A declaration that JUDITH CHIRLIN and

WESTERN JUSTICE CENTER acted with malice, oppression, and wanton and intentional disregard for the

law when they cancelled the facility use contract with

PASADENA REPUBLICAN CLUB based on the RELIGIOUS viewpoint and beliefs of the speaker chosen

for the event.

7. A declaration that JUDITH CHIRLIN conspired in violation of 42 U.S.C. §1985 with the staff and

executive committee and the WESTERN JUSTICE

CENTER to deprive the PASADENA REPUBLICAN

CLUB and its members of their civil rights specifically

by barring events with speakers that are affiliated

with religious groups opposing same-sex marriage.

8. An injunction prohibiting the CITY OF PASADENA from allowing WESTERN JUSTICE CENTER

App. 93

to decide which organizations may or may not hold

events at City-owned property leased to the WESTERN JUSTICE CENTER by the CITY OF PASADENA

for public purposes.

9. An injunction prohibiting the WESTERN

JUSTICE CENTER or any of its agents from discriminating against organizations in the use of city-owned

facilities based on the viewpoint of the speaker or the

religious viewpoint or affiliation of the speaker.

10. An injunction prohibiting the CITY OF PASADENA or any of its agents from discriminating

against organizations in the use of city facilities based

on the viewpoint of the speaker or the religious viewpoint or affiliation of the speaker.

11. For damages according to proof, including

damages for emotional distress suffered by members of

the PASADENA REPUBLICAN CLUB.

12. For punitive damages against JUDITH

CHIRLIN, the executive committee of the WESTERN

JUSTICE CENTER, and WESTERN JUSTICE CENTER for action with malice, oppression, and wanton

disregard for the law in engaging political viewpoint

and religious belief discrimination and conspiracy to

deprive plaintiffs of their civil rights.

13.

For costs of suit including attorneys’ fees.

14.

For such other relief as is just and proper.

App. 94

DATED: February 5, 2019

ANTHONY T. CASO

/s/ Anthony T. Caso

BY ANTHONY T. CASO

Attorney for Plaintiff

JURY TRIAL DEMAND

Plaintiff demands a trial by jury on the on all issues triable by jury in this complaint.

DATED: February 4, 2019

ANTHONY T. CASO

/s/ Anthony T. Caso

BY ANTHONY T. CASO

Attorney for Plaintiff

[Declaration Of Service Omitted]

App. 95

EXHIBIT 2

LEASE AGREEMENT NO. 13,753

THIS LEASE (“Lease”) is made as of the 4th day

of April, 1989, by and between the PASADENA SURPLUS PROPERTY AUTHORITY, a public body, corporate and politic (“Landlord”), and the WESTERN

JUSTICE CENTER, a California non-profit corporation (“Tenant”).

1.

Premises.

1.1. Demise of Premises. Landlord hereby

leases to Tenant, and Tenant leases from Landlord, for

the term, at the rental, and upon all of the conditions

set forth herein, that certain real property situated

in the County of Los Angeles, State of California, commonly known as 55-85 South Grand Avenue, Pasadena, California, which real property is more fully

described in Exhibit A attached hereto and incorporated herein by this reference. Said real property, including the land and all improvements thereon, is

herein called “the Premises.”

1.2. Relationship of the Parties. Landlord is

entering into this Lease as a means of benefiting the

citizens of the City of Pasadena (the “City”) and its environs through a center for the study of dispute resolution and the administration of justice, to provide

additional employment and revenues to the local economy, to provide for improvements in both the local, regional, national, and international components of the

legal system, and to provide a forum for educational

App. 96

research. Landlord is also entering into this Lease for

the purpose of insuring the restoration and historic

preservation of the Premises. A detailed copy of Landlord’s goals is attached in the Plan of Public Use for

Surplus Property attached hereto as Exhibit B. Tenant

is entering into this Lease, rather than directly purchasing the Premises, because the Tenant does not

qualify as an organization eligible to purchase the

Premises. It is the intent that neither Landlord nor the

City of Pasadena shall be required to contribute general funds to the acquisition, restoration or renovation

of the Premises, but nothing contained herein shall be

construed as prohibiting or restricting the City against

assisting Tenant in applying to third parties for grants

of funds to be used for restoring the Premises. This

Lease is not entered into as a commercial transaction

by either party, but Landlord wants to ensure that its

goals are met, that the operations of Tenant do not constitute a nuisance or otherwise disturb the neighborhood, and that the Premises are properly maintained

and protected.

2.

Term.

2.1. Term. The term of this Lease shall be for

fifty-five (55) years, commencing on the date Landlord

tenders possession of the Premises to Tenant pursuant

to Exhibit C, attached hereto (the “Commencement

Date”), and ending fifty-five (55) years thereafter, unless sooner terminated pursuant to any provision

hereof.

App. 97

2.2. Delay. It is acknowledged Landlord does not

presently own the Premises, but Landlord is offering

to purchase the Premises from the General Services

Administration (the “GSA”). If Landlord is unable to

deliver to Tenant possession of the Premises by December 31, 1989, Landlord shall not be liable for any

damage caused thereby. In such event, this Lease shall

not be void or voidable, provided that possession is tendered to Tenant December 31, 1989; subject to further

extensions aggregating no more than ninety (90) days

due to acts of God, war, labor strikes, and other occurrences beyond the control of Landlord, plus any period

of time due to delays caused by Tenant. In the event of

such late delivery of the Premises, the commencement

of the term of this Lease shall be postponed by the

length of such delay in delivering possession, and the

liability of Tenant for rent (other than the initial payment under Section 3.1) shall be postponed until the

newly determined Commencement Date. In the event

that Landlord has not tendered possession to Tenant

within the period in which such delay is excused as set

forth herein, this Lease shall be voidable without further obligation at the option of either party upon written notice to the other party. In the event either party

elects to void the Lease under this Section 2.2, the initial rental payment provided in Section 3 shall be returned to Tenant by the Landlord.

2.3. Option to Extend Term. Tenant shall have

one (1) option to extend the term of this Lease for a

period of forty-four (44) years. This extension option

shall be personal to Tenant and may not be exercised

App. 98

or be assigned, voluntarily or involuntarily, by or to

any person or entity other than Tenant unless Landlord specifically consents to such assignment; the option herein granted to Tenant shall not be assignable

separate and apart from this Lease. Tenant may exercise this option by delivering written notice thereof to

Landlord at least ten (10) days prior to the expiration

of the initial 55 year term of this Lease.

3.

Rent.

3.1. Rent. Tenant covenants to pay to Landlord during the term hereof, at Landlord’s address set

forth in Section 24 hereof or to such other persons or

at such other places as directed from time to time by

written notice to Tenant from Landlord, a rental sufficient to reimburse Landlord and pay all out-of-pocket

costs and expenses (including the purchase price) arising from Landlord’s acquisition of the Premises from

the GSA. The Landlord is contemporaneously herewith

entering into an agreement to purchase the Premises

from the General Services Administration for the total

purchase price of $412,000, payable by an initial down

payment of $82,400.00, and the balance due in equal

quarterly installments of principal and interest, over a

term of ten (10) years, with interest at a rate thereon

being equal to the yield rate on ten (10) year Treasury

maturities as reported by the Federal Reserve Board

in “Federal Reserve Statistical Release H.15” plus 11/2 percentage points, rounded to the nearest 1/8%, as

of the date of acceptance of the City’s offer to purchase

the Premises from the GSA. This latter sum shall be

evidenced by a promissory note (the “Note”) to the

App. 99

GSA. Accordingly, Tenant shall pay the Landlord rent

as follows:

3.1.1. Tenant shall deliver to Landlord upon

execution of this Lease an initial payment of rent in

the sum of $82,400, which is not to be attributable to

any period of time for Tenant’s use of the Premises, but

is consideration for this Lease.

3.1.2. In addition, within 30 days after receipt of an invoice therefor, Tenant shall pay to Landlord as additional rent (i) all out-of-pocket costs and

expenses (other than legal fees) incurred by Landlord

in acquiring the Premises, obtaining the extension of

credit described in Section 3.1 hereof for acquiring the

Premises, and preparing and entering into this Lease,

including but not limited to closing fees and costs, and

(ii) all costs and expenses incurred by Landlord in

holding the Premises for the period from the Landlord’s acquisition of possession of the Premises through

the Commencement Date, including but not limited to

maintenance, utility and security costs, plus any additional sums paid to the GSA.

3.1.3. Tenant shall deliver additional payments of rent to the Landlord quarterly, within thirty

(30) days prior to the due date of any installment of

principal and interest on the Note to the GSA, in the

amount of the next following payment due on the Note,

until such time as the obligation to the GSA has been

paid in full.

3.1.4. Tenant shall deliver to the Landlord

from time to time, within thirty (30) days after receipt

App. 100

of demand therefor, additional rent equal to all out-ofpocket costs and expenses incurred by Landlord in

supervising this Lease and in monitoring the Premises, and all sums advanced by Landlord on behalf of

Tenant where such sums are required hereunder to

be expended by Tenant but Tenant failed to do so. No

cost for general overhead or employee salaries of Landlord or City shall be included in such additional rent.

All rent shall be payable in lawful money of the United

States to Landlord at the address stated herein or to

such other persons or at such other places as Landlord

may designate in writing.

3.2. Special Net Lease. This Lease is what is

commonly called a “Net, Net, Net Lease,” it being understood that Landlord shall receive the rent set forth

in Section 3.1 free and clear of any and all other impositions, taxes, liens, charges or expenses of any nature

whatsoever in connection with the ownership and operation of the Premises. In addition to the rent set

forth in Section 3.1, Tenant shall pay to the respective entities entitled thereto all taxes, impositions,

insurance premiums, operating charges, maintenance

charges, construction costs, and any other charges,

costs and expenses which arise in connection with the

use or occupancy of the Premises or which may be contemplated under any provisions of this Lease during

the term hereof. If any such charges, costs and expenses shall constitute a lien or charge against the

Premises, or if any such fees, charges, costs or expenses

are customary fees imposed from time to time on the

general public by the City, then such fees, charges,

App. 101

costs or expenses shall constitute additional rent, and

upon the failure of Tenant to pay any of such fees, costs,

charges or expenses, Landlord shall have the same

rights and remedies as otherwise provided in this

Lease for the failure of Tenant to pay rent. It is the intention of the parties hereto that Tenant shall not be

entitled to any offset, abatement of, or reduction in any

rent payable under this Lease, except as herein expressly provided. Any present or future law to the contrary shall not alter this agreement of the parties.

4. Quiet Possession. Upon Tenant paying the rent

and observing and performing all of the covenants, conditions and provisions on Tenant’s part to be observed

and performed hereunder, Tenant shall have quiet possession of the Premises for the term hereof subject to

all of the provisions of this Lease.

5.

Use.

5.1. Use. The Premises shall be used and occupied by Tenant and its sublessees only for the purposes

described in the Plan of Public Use for Surplus Property, including but not limited to the following nonprofit law related functions: (i) operation of a center

for the study of the following matters: alternative dispute resolution, administration of justice, delivery of

legal services, and other legally oriented issues; (ii)

providing space to non-profit entities for legal seminars, meetings, conferences, hearing rooms, deposition

rooms, arbitration rooms, law library, research space;

(iii) residential and office facilities for legal researchers

and scholars and ancillary services such as dining

App. 102

facilities; and (iv) for subleasing portions of the Premises to tax exempt organizations providing law related

services, and for no other purposes whatsoever. Tenant

is expressly prohibited from leasing the Premises or

any portion thereof to lawyers offering legal services

for profit or allowing the Premises or any portion

thereof to be used for any for profit activities. Tenant

shall continuously during the term of this Lease

following completion of all Tenant Improvements (as

herein defined) use the Premises for these purposes

during ordinary business hours. Nothing herein precludes Tenant from using the Premises for community

meetings and other purposes during non-business

hours.

5.2. Compliance with Law. Tenant shall, at

Tenant’s expense, comply promptly with all applicable

statutes, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements of

any governmental authority in effect during the term

hereof, regulating the use by Tenant of the Premises. If

any bureau, department or official of the state, county

or city government or any governmental authority

having jurisdiction, requires in the exercise of its

valid authority that any changes, modifications, replacements, alterations, or additional equipment be

made or supplied in or to any portion of the Premises

by reason of Tenant’s use thereof, or the location of partitions, trade fixtures, or other contents of the Premises, Tenant shall, at Tenant’s cost and expense, make

and supply such changes, modifications, replacements,

alterations or additional equipment. Tenant shall not

App. 103

use nor permit the use of the Premises in any manner

that will tend to create waste or a nuisance.

5.3. Condition of Premises.

5.3.1. Tenant hereby accepts the Premises

in their condition existing as of the Commencement

Date or the date that Tenant takes possession of the

Premises, whichever is earlier, subject to all applicable

municipal, county and state laws, ordinances and regulations governing and regulating the use of the Premises, and any covenants, conditions, or restrictions of

record, and accepts this Lease subject thereto and to

all matters disclosed thereby and by any exhibits attached hereto. Tenant acknowledges that Landlord has

not made any representation or warranty, express or

implied, as to the condition of the Premises, their fitness for any purpose, the presence or absence of any

hazardous substances at the Premises, or the present

or future suitability of the Premises for Tenant’s use

thereof. Tenant has had a full, reasonable opportunity

to study and investigate the Premises and Tenant accepts the Premises in their “as-is” condition. Tenant

acknowledges that Landlord shall not be receiving any

net cash flow from this Lease and Tenant understands

and agrees that the rent is set at this level because

Tenant shall be responsible for improving the Premises to a usable condition. Landlord shall have no obligation to correct any condition or alleged defects.

5.3.2. Landlord hereby notifies Tenant of

the presence of certain toxic or hazardous substances

or materials in, on or about the Premises. With the

App. 104

exception of asbestos-containing materials, Landlord

has no actual knowledge of the presence of any other

hazardous substances located in, on, or under the

Premises, but, because the definition of hazardous substance is vague and broad, Landlord also notifies Tenant of the possibility of the presence of other hazardous

substances in, on or about the Premises. Tenant shall

perform all actions required by law (including obligations of an owner of real property), to describe to any

persons of the presences of hazardous or toxic substances materials at the Premises, including disclosures required to be made to subtenants, workers, and

the general public. As set forth above, Landlord makes

no warranty as to the absence of any type of toxic or

hazardous substances or materials, and transfers any

duty to clean-up, remove, or store any such substance

directly to the Tenant. Further, Landlord shall have no

obligation to compensate Tenant for such acts.

5.3.3. Tenant agrees to take all action required by any federal, state, or local law to clean-up,

remove, abate, and/or store any toxic or hazardous substances or materials located in, on or about the Premises and to indemnify Landlord against and hold

Landlord free and harmless from any liability arising

out of Tenant’s failure to do so.

5.3.4. Tenant shall remove from the Premises of all asbestos and asbestos-containing materials

prior to opening the Premises for business. Tenant

shall obtain the services of a licensed contractor registered with the State of California Division of Industrial

Safety, to perform such abatement and any necessary

App. 105

monitoring activities in accordance with all federal,

state, and local health and safety regulations. Tenant

shall insure that the contractor make proper notification to all appropriate regulatory agencies, including the Environmental Protection Agency (“EPA”),

Air Quality Management Division (“AQMD”), California Department of Health Services (“DOHS”), CalOSHA, and State of California Division of Industrial

Safety, to the extent required by law. Tenant shall also

engage the services of a qualified firm to sample air

quality and monitor work site activities during the period of asbestos abatement. Landlord will obtain an

EPA Site Identification Number, and will provide performance standard criteria for selection of the contractor. Landlord retains the right of review and approval

of Tenant’s choice of its asbestos abatement contractor

and environmental testing firms, prior to Landlord’s

awarding contracts.

6. Rehabilitation of the Premises. Tenant acknowledges and agrees that the Premises require extensive

reconstruction and rehabilitation. Attached hereto as

Exhibit C is a schedule (the “Improvement Schedule”)

under which Tenant shall submit plans and proceed

with constructing improvements (“Tenant Improvements”) for the reconstruction and rehabilitation of the

Premises. To this end, Tenant agrees that it shall construct or cause to be constructed at its sole cost and

expense all Tenant Improvements on the Premises in

accordance with all plans and specifications submitted

by Tenant to Landlord pursuant to this Lease. Tenant

may reconstruct and rehabilitate the Premises in

phases, provided the various elements are completed

App. 106

within the times set forth in the Improvement Schedule. Notwithstanding the foregoing, Landlord’s designated staff members may approve extensions of time

in the Improvement Schedule, so long as the rehabilitation of the Premises is fully completed within thirtysix (36) months after the Commencement Date of this

Lease. All plans submitted hereunder shall be submitted to Landlord’s and City’s review bodies as required

by City ordinance. Landlord shall exercise the best efforts to cause City to expedite all governmental approvals relating to the renovation of the Premises.

6.1.

Historic Preservation Requirements.

Tenant acknowledges that the Premises are listed

in the National Register of Historic Places, and therefore, Tenant agrees that all Tenant Improvements and

other modifications, alterations and additions to the

Premises shall be performed in accordance with the

regulations of the Advisory Council on Historic Preservation (the “Council”), “Protection of Historic and

Cultural Properties” (36 C.F.R. Part 800), the California State Historic Preservation Officer (“SHPO”),

and the National Historic Preservation Act of 1966,

as amended (16 U.S.C. Sec. 470f ). Tenant further

agrees to the following covenants, and agrees to be

bound to these covenants, restrictions and limitations.

(a) The structures on the Premises will be

preserved and maintained in accordance with plans

approved in writing by the California SHPO.

(b) No physical or structural changes or

changes of color or surfacing will be made to the

exterior of the structures on the Premises, or to

App. 107

architecturally or historically significant interior features, as determined by the California SHPO, without

the written approval of the California SHPO.

(c) in the event of a violation of the above restrictions, GSA or the California SHPO, as well as

Landlord, may institute a suit against Tenant to enjoin

such violation or for damages by reason of any breach

thereof.

(d) The above restrictions shall be binding

on the parties hereto, their heirs, successors, and assigns in perpetuity; however, the California SHPO

may, for good cause, modify or cancel any or all of the

foregoing restrictions upon written application of Tenant and Landlord.

6.2. Plans, Permits and Entitlements for

Use. Tenant shall apply for and pursue in a timely and

diligent manner all permits and other entitlements for

use which may be required by the City, the California

SHPO, the Council, or any other public entity or regulatory body, in connection with the construction of

the Tenant Improvements in accordance with the Improvement Schedule.

6.3. Basic Concept Drawings. Tenant shall

prepare and submit to the Landlord, the California

SHPO, and the Council, for review and approval Basic

Concept Drawings and related documents in accordance with the Improvement Schedule. The Basic Concept Drawings shall be subject to the review and

approval of the Landlord, the California SHPO and the

Council, and, to the extent required by local law, the

App. 108

City, which review and approval shall include aesthetic

considerations of the Landlord and the City. The construction of the Tenant Improvements shall be as

generally established in the Basic Concept Drawings

except for such changes as may be mutually agreed

upon by Tenant, Landlord, the California SHPO, and

the Council. Approved Basic Concept Drawings will be

the basis for preparation of Preliminary Drawings to

initiate further detail and design features on a larger

scale.

6.4. Preliminary Drawings. Tenant shall prepare for Landlord’s, the Council’s and the California

SHPO’s review and approval Preliminary Drawings

based upon the approved Basic Concept Drawings

within the time period set forth in the Improvement

Schedule.

6.5. Landscaping. Tenant shall prepare and

submit to Landlord, for Landlord’s review and approval, preliminary and final Landscaping Plans for

the Premises at the times established in the Improvement Schedule.

6.6. Final Construction Drawings and Related Documents. At the time established in the Improvement Schedule, Tenant shall prepare and submit

five sets of Final Construction Drawings, including

complete construction documents, site elevations, final

outline specifications, and final construction cost estimate summaries, together with one set of appropriate

structural computations identical to those required by

the Landlord’s Building and Development Services

App. 109

Division incident to issuance of building permits, to

Landlord, for review by Landlord, the Council, the California SHPO, and other review bodies having legal authority over the Premises, for architectural review and

written approval. Final Construction Drawings are

hereby defined as those in sufficient detail to obtain

necessary building permits. Tenant shall concurrently

file duplicate copies thereof with the Landlord’s Building and Development Services Division together with

required applications for building permits.

6.7. Approval of Plans. Any items submitted to

and approved by Landlord shall not be subject to subsequent disapproval. Landlord may designate any staff

member of Landlord as having authority to approve or

disapprove concepts, drawings and plans on behalf of

Landlord. Following approval of the Basic Concept

Drawings, approval of progressively more detailed

drawings and specifications will granted by Landlord

if developed as a logical evolution of the documents

previously approved. Any disapproval by Landlord

shall include in reasonable detail written reasons for

disapproval. Tenant, upon receipt of a disapproval,

shall revise such portions as are rejected and resubmit

them to Landlord within thirty (30) days thereafter,

and the time periods set out in the Improvement

Schedule shall be tolled accordingly. Approvals shall

not unreasonably be withheld.

6.8.

Changes in Construction Drawings.

6.8.1. All construction of the Tenant Improvements shall in all respects be performed in

App. 110

compliance with the approved Final Construction

Drawings. If Tenant desires to make any changes in

the Final Construction Drawings and related documents after their approval by the Landlord, Tenant

shall submit the proposed change to the Landlord for

its approval. If approved, Landlord shall notify Tenant

of such approval in writing within thirty (30) days after submission to the Landlord. Tenant, upon receipt of

a disapp

This text is long and has been trimmed here. Open the source document for the complete record.