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Case 2:16-cv-08422-DSF-PLA Document 62 Filed 02/09/18 Page 1 of 7 Page ID #:560




Date 2-9-18
Case No. CV 16-8422 DSF (PLAx)
Title Krishna Lunch of Southern California, Inc., et al. v. Monroe Gordon Jr.

DALE S. FISCHER, United States District Judge
 The Honorable

Debra Plato Not Present

Deputy Clerk Court Reporter
Attorneys Present for Plaintiffs Attorneys Present for Defendants
Not Present Not Present
Proceedings: (In Chambers) Order GRANTING Motion to Dismiss (Dkt. 42)


Plaintiff Krishna Lunch of Southern California, Inc. (Krishna Lunch) is a

nonprofit, religious corporation. Plaintiffs Raju Manthena, Srinivas Prasad, Nitika
Kathuria, Raksha Dutt, Vidori Vaide, and Bruce Ellingson are students or
employees of the University of California, Los Angeles (UCLA). Plaintiffs bring
First Amendment claims against Defendant Monroe Gorden, Jr., the Interim Vice
Chancellor for Student Affairs, in his official capacity.

The Court previously granted Defendant’s motions to dismiss Plaintiffs’

First and Second Amended Complaints. See Dkts. 31, 39. Defendant now moves
to dismiss the Third Amended Complaint (TAC). The motion is GRANTED.


Krishna Lunch adheres to the teachings of Krishna consciousness, a religion

within the broad theological umbrella of the Vaishnava tradition of Bhakti

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Hinduism. TAC ¶ 15. A core tenet of Krishna consciousness requires followers to
approach people to proselytize, disseminate materials, and propagate the teachings
of the religion to educate the general public about global warming, climate change,
animal protection, God-centered ecology, the relationship between science and
religion, and the origin of life and the universe. Id. ¶ 16. A core practice of the
religion is the consumption of sanctified, vegetarian and vegan food, known as
prasada. Id. ¶¶ 17-19. Because the religion attaches significance to consuming
prasada (e.g., those who partake in prasada are believed to be protected from the
material world), the distribution and sharing of prasada is an important spiritual
practice and a “cornerstone of the religion.” Id. ¶ 20.

Krishna Lunch seeks to provide a lunch program on UCLA’s campus “two

or three times per week,” distributing prasada as a practical, concrete example of
an alternative to a meat-based economy and food supply. Id. ¶¶ 24, 37. Krishna
Lunch initially sought permission from UCLA to conduct the lunch program in
early February 2016. Id. ¶ 38. A meeting was held in May 2016, and UCLA
outlined the health, safety, fire, and insurance requirements for the lunch program.
Id. ¶¶ 38-39. Krishna Lunch was willing to agree to a trial period and informed
UCLA’s counsel that it was in the process of obtaining the necessary permits. Id.
¶ 40. Krishna Lunch obtained a “Community Event” permit from the Los Angeles
County Health Department in June 2016, effective for one year. Id. ¶ 41. In
August 2016, UCLA informed Krishna Lunch it could hold the lunch program a
maximum of four times per year, provided it paid a fee for the opportunity to hold
the lunch program on campus. Id. ¶ 42; see also Dkt. 17, Ex. C.1 UCLA’s counsel
later sent Krishna Lunch a letter informing it what laws may be violated if the
lunch program proceeds without UCLA’s approval. TAC ¶ 43; Dkt. 17, Ex. D.

“Generally, the scope of review on a motion to dismiss for failure to state a claim is
limited to the contents of the complaint. A court may consider 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 copy attached to the 12(b)(6) motion. The court may treat such a document as part of
the complaint, and thus may assume that its contents are true for purposes of a motion to
dismiss under Rule 12(b)(6).” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)
(citations and internal quotation marks omitted). A court may consider the full text of
documents only partially quoted in the complaint. Cooper v. Pickett, 137 F.3d 616, 623
(9th Cir. 1998).

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Plaintiffs allege UCLA’s four-days-per-year limitation on the lunch program
violates their First Amendment rights to free speech, free exercise of religion, and
free assembly and association.


“Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief. Specific facts
are not necessary; the statement need only give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (ellipsis in original; internal quotation marks omitted). But
Rule 8 “requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007).

Federal Rule of Civil Procedure 12(b)(6) allows an attack on the pleadings

for failure to state a claim upon which relief can be granted. “[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint.” Erickson, 551 U.S. at 94. However,
allegations contradicted by matters properly subject to judicial notice or by exhibit
need not be accepted as true, Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001); and a court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). “Nor does a complaint suffice if it tenders
naked assertion[s] devoid of further factual enhancement.” Id. (alteration in
original; citation and internal quotation marks omitted). A complaint must “state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. This
means that the complaint must plead “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id.

Ruling on a motion to dismiss will be “a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense. But
where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it has not show[n] – that

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the pleader is entitled to relief.” Id. at 679 (alteration in original; internal quotation
marks and citation omitted).


A. Free Exercise Clause

The Free Exercise Clause of the First Amendment bars laws “prohibiting the
free exercise [of religion.]” U.S. CONST. amend. I. Under the Free Exercise
Clause, “a law that is neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the incidental effect of
burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 531 (1993).

For the third time, Plaintiffs fail to state a Free Exercise claim. Plaintiffs
add several allegations to the TAC regarding the importance of prasada to their
religious message. See, e.g., TAC ¶ 28. However, Plaintiffs continue to concede
that because UCLA’s restriction limiting the number of events in which off-
campus organizations may serve prepared food is both facially neutral and
generally applicable, it need only survive rational basis review. See Stormans, Inc.
v. Selecky, 586 F.3d 1109, 1137 (9th Cir. 2009) (“When a law is neutral and
generally applicable, the rational basis test applies.”). As set out in the Court’s
first Order, Plaintiffs’ allegations are fully consistent with UCLA’s legitimate
reasons for limiting how often off-campus groups may distribute food:

Defendants’ reasons for limiting the regularity with which both off
campus groups and student organizations may distribute food are
supported by Plaintiffs’ own allegations and arguments. Compare
[Dkt.] 17, Ex. C and FAC, ¶¶ 31, 34 (allocating limited campus
venues and facilities among numerous students and organizations
seeking to use them; managing administrative burdens of monitoring
food service events), with FAC at ¶¶ 24-26 (over 90,000 students,
faculty members, and employees; pedestrian walkways and lawns
open to general public; commitment to assure opportunity for a
variety of viewpoints), and Dkt. 26 at 8-12, 22-23 (import of food
across myriad groups, cultures, and religions).

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Dkt. 31 at 8. Plaintiffs plead no facts to support their contention that UCLA’s
restriction is “fabricated,” see Dkt. 49 (Opp’n) at 9-10, especially given that the
restriction was in place (and applied to all off-campus organizations) prior to
Krishna Lunch’s request. Because Plaintiffs have failed to negate every
conceivable rational basis for the challenged restriction, Defendant’s motion to
dismiss Plaintiffs’ free exercise claim is GRANTED.

B. Free Speech Clause

The First Amendment prohibits laws “abridging the freedom of speech.”

U.S. CONST. amend. I. Although “pure speech” or “inherently expressive speech”
is generally entitled to First Amendment protection, conduct intending to express
an idea is constitutionally protected only if it is “sufficiently imbued with elements
of communication,” meaning “an intent to convey a particularized message is
present, and the likelihood is great that the message will be understood by those
who view it.” Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1058 (9th Cir.
2010) (alterations and internal quotation marks omitted) (quoting Spence v.
Washington, 418 U.S. 405, 409-11 (1974)).

Plaintiffs contend their food distribution is inherently expressive because it

“conveys a message about the spiritual and ethical aspects of animal protection, as
well as the environmental and medical damage caused by using animals for food.”
TAC ¶ 52.2 That may be why Plaintiffs share food, but it does not turn food
distribution generally into a purely expressive act. Instead, the Court views food
sharing as similar to burning a flag or draft card, or wearing a black armband,
“which can be done for reasons having nothing to do with any expression, and so
require an interpretive step to determine the expressive elements.” Anderson, 621
F.3d at 1061.

Plaintiffs’ lunch program is therefore subject to Spence’s “sufficiently

imbued” test, i.e., is afforded First Amendment protection only if there is an intent
to convey a particularized message and a great likelihood that message would be
understood by those who view it. Anderson, 621 F.3d at 1058. “A ‘narrow,
The TAC also asserts that an important goal of the program is “to not only provide
spiritual education based on the Vedic scriptures of ancient India, but to provide students,
and others, with at least one healthy, nutritious, and tasty vegetarian/vegan meal per day.”
TAC ¶ 23.

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succinctly articulable message’ is not required.” Kaahumanu v. Hawaii, 682 F.3d
789, 798 (9th Cir. 2012) (quoting Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, 515 U.S. 557, 569 (1995)).3 The Court previously
concluded that Plaintiffs failed to allege a great likelihood their pro-animal/anti-
meat message would easily be understood by those who view it.

They still have not done so. Indeed, Plaintiffs’ only significant addition is to
allege their lunch program “is sufficiently imbued with elements of
communication,” TAC ¶ 52—a legal conclusion insufficient to state a First
Amendment claim. Otherwise, Plaintiffs continue to stress the context of the lunch
program as a whole, all the while relying on their own pure speech activities to
provide the relevant context (i.e., literature and conversations that would impart the
meaning of sanctified vegetarian and vegan food), which is “strong evidence that
the conduct at issue . . . is not so inherently expressive that it warrants protection”
under the First Amendment. Rumsfeld v. Forum for Acad. & Institutional Rights,
Inc., 547 U.S. 47, 66 (2006). And Plaintiffs do not explain why other contextual
factors they identify—such as the location of the lunch program on UCLA’s
campus—are sufficient to transform Plaintiffs’ behavior into conduct that “the
great majority of citizens” would understand “the drift of.” Spence, 418 U.S. at
411. If anything, the fact that the Assigned Area (the location where Plaintiffs
would conduct prasada) is regularly used by groups for which food distribution is
common, see TAC ¶ 31, makes it highly unlikely that the ordinary viewer would
glean a particularized message from Plaintiffs’ lunch program.

Ultimately, Plaintiffs have not sufficiently alleged their general or specific

pro-animal/anti-meat message would be discernable by observers. Cf.
Kaahumanu, 682 F.3d at 799 (holding that wedding ceremonies are protected
expression because “[t]he core of a wedding ceremony’s ‘particularized message’

Some Circuits have concluded that Hurley liberalized the Spence requirements, such
that the observer need not understand a plaintiff’s particular message. See, e.g.,
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004) (looking to
whether “the reasonable person would interpret [a display] as some sort of message, not
whether an observer would necessarily infer a specific message”). The Ninth Circuit has
not gone this far. See Kaahumanu, 682 F.3d at 798 (citing Hurley for the proposition that
a “narrow, succinctly articulable message is not required,” but otherwise leaving the
Spence requirements intact).

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is easy to discern”). Defendant’s motion as to Plaintiffs’ free speech claim is

C. Expressive Association

The Supreme Court has noted that protected First Amendment associational
activity shields two distinct types of association: “expressive association” and
“intimate association.” Roberts v. United States Jaycees, 468 U.S. 609, 617-18
(1984). Plaintiffs’ desire to associate with “like-minded persons,” TAC ¶ 63, does
not touch on intimate association. See id. at 619 (freedom of intimate association
extends to those human relationships that attend the creation and sustenance of a
family-marriage; childbirth; the raising and education of children; and cohabitation
with one’s relatives.).

The right to expressive association is a derivative right that has been implied
from the First Amendment in order to assure those rights expressly secured by that
amendment can be meaningfully exercised. See id. at 618 (“The Constitution
guarantees freedom of association of this kind as an indispensable means of
preserving other individual liberties.”).

There are no new allegations that would lead the Court to sustain Plaintiffs’
expressive association claim. As discussed above, UCLA’s restriction on Krishna
Lunch’s proposed program does not run afoul of Plaintiffs’ rights to freedom of
speech or freedom of religion, and so the restriction does not burden Plaintiffs’
associational rights. Significantly, whatever constitutionally protected expression
that might occur on the UCLA campus (e.g., chanting, literature distribution, and
speaking) would not be impermissibly infringed by the restriction, which imposes
no limits on Plaintiffs’ ability to engage in protected speech regarding their beliefs.
Defendant’s motion to dismiss Plaintiffs’ free association claim is GRANTED.


Plaintiffs have had three opportunities to amend, adding little each time:
they do not suggest that allowing further amendment would assist them in stating a
claim. The Third Amended Complaint is DISMISSED WITH PREJUDICE.


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