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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LIL’ MAN IN THE BOAT, INC.,

Plaintiff,

v.

CITY AND COUNTY OF SAN 

FRANCISCO, et al.,

Defendants.

Case No. 17-cv-00904-JST 

ORDER GRANTING MOTION FOR 

JUDGMENT ON THE PLEADINGS

Re: ECF No. 40

Before the Court is Defendants’ motion for judgment on the pleadings. ECF No. 40. For 

the reasons stated below, the Court will grant the motion.

I. FACTUAL BACKGROUND

Plaintiff Lil’ Man In the Boat, Inc. (“Lil’ Man”) “owns and operates a licensed commercial 

charter Motor Vessel ‘Just Dreaming’ that provides transportation and hospitality services on the 

San Francisco Bay both for locals and visitors from all over the globe.” ECF No. 33, First 

Amended Complaint (“FAC”) ¶¶ 1.

1

 Since 2006, Lil’ Man has “operate[d] within the jurisdiction 

of the Port of San Francisco, and by Port regulation, must load and unload its passengers at the 

North Side Dock of Pier 40’s South Beach Harbor.” Id. ¶¶ 1, 32. Defendants are the City and 

County of San Francisco, the San Francisco Port Commission, Elaine Forbes, Peter Daley, Jeff 

Bauer, and Joe Monroe (collectively referred to as “Defendants”). Id. ¶ 4. Defendants are jointly 

responsible for the regulation of the Port of San Francisco. Id. ¶ 5. As part of their 

responsibilities, Defendants “exclusively determine[] all landing fees, regulations, and 

requirements for South Beach Harbor.” Id. ¶ 5.

 

1

For the purposes of deciding this motion, the Court accepts as true all allegations set forth in 

Plaintiff’s FAC. Bill v. Brewer, 799 F.3d 1295, 1299 (9th Cir. 2015). 
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Lil’ Man filed this case because San Francisco changed the terms under which it allowed 

boats to dock at South Beach Harbor. For the years 2013 through 2015, the landing fee for

commercial vessels such as Just Dreaming was $160 per hour. Id. ¶ 32, 34. In 2016, Defendants 

introduced a “Landing Agreement” (the “2016 Agreement”) which required commercial vessel 

operators to enter a “written landing rights agreement” with Defendant. Id. ¶ 12. The agreement 

increased landing fees “to $220 for commercial vessel operators,” gave Defendants the right to 

increase the required fees “at any time,” and “impose[d] a supplemental 7% Gross Revenue Fee.” 

Id. ¶¶ 32, 39, 40. The gross revenue fee “requires the commercial vessel operator to pay 7% 

percent of its monthly gross revenues in any month when (i) the 7% percent fee for such calendar 

month exceeds the (ii) base landing fee for such calendar month.” Id. ¶ 40. This gross revenue 

fee includes profit realized from the sale of alcoholic beverages. Id. The 2016 Agreement also 

includes an “Exculpation and Waiver” clause, which Plaintiff construes to require a waiver of its 

right to bring “every claim for damages against Defendants[,] in violation of the First Amendment 

right to petition the government for a redress of grievances.” Id. ¶¶ 14, 20, 42. 

In June 2016, Defendants “ordered Plaintiff and others similarly situated to either” sign the 

2016 Agreement “or cease all commercial interstate operations as of October 1, 2016.” Id. ¶ 46. 

Some commercial tenants signed the agreement, but Plaintiff did not, even though Defendants 

repeatedly threatened that failure to sign the agreement would prevent Plaintiff from using the Port

and expose it to criminal trespass charges. Id. Plaintiff paid the 7% gross revenue fee on two 

occasions in order to continue its previously reserved operations. Id. ¶¶ 17, 49. Plaintiff asserts

that the 2016 Agreement essentially “locked [it] out of South Beach Harbor (and, in reality, the 

City and County of San Francisco) for purposes of conducting [its] business.” Id. 

Plaintiff’s FAC makes three claims relating to the 2016 Agreement. First, Plaintiff brings 

a claim for violation of 42 U.S.C. § 1983 (“Section 1983”) claim based on violations of the 

Tonnage Clause, the Commerce Clause, the First Amendment, and the Rivers & Harbors Act. 

Second, Plaintiff brings a claim entitled “Declaratory and Injunctive Relief,” although the body of 

the complaint seeks declaratory relief only. Id. ¶¶ 85-89. And third, Plaintiff brings a claim for 

unjust enrichment. 
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Plaintiff’s FAC also brings a putative class action. Plaintiff seeks to represent the 

following four classes:

(a) All persons and entities licensed by the USCG for commercial 

passenger service who, at any time during the four years 

preceding the filing of this action to the date of Class 

Certification have landed at, moored, or caused passengers to 

traverse South Beach Harbor and incurred or paid fees to 

Defendants for that opportunity;

(b) All persons and entities who, at any time during the four years 

preceding the filing of this action to the date of Class 

Certification, were licensed commercial passenger vessel 

operators who were subject to Defendants’ demand that they 

execute and/or comply with the terms, payments, and conditions 

of the 2016 Landing Agreement in order to use South Beach 

Harbor;

(c) All persons and entities who, at any time during the four years 

preceding the filing of this action to the date of Class 

Certification, were licensed commercial passenger vessel 

operators and signed the 2016 Landing Agreement and complied 

with its terms;

(d) All persons or entities who, for the past four years to the present, 

have been licensed for sale and consumption of alcoholic 

beverages and who were or are subject to Defendants’ demand 

for payment of a percentage of revenues or profits. 

Id. ¶ 50. 

II. PROCEDURAL BACKGROUND

Plaintiff filed its original complaint on February 22, 2017, making four claims: 

(1) violation of Section 1983 based on violations of the Tonnage Clause, the Commerce Clause, 

the First Amendment, and the Rivers & Harbors Act, (2) violation of the Bane Act, (3) declaratory 

and injunctive relief, and (4) unjust enrichment. ECF No. 1. On March 30, 2017, Defendants 

moved to dismiss the complaint in its entirety. ECF No. 12. The Court denied the motion to 

dismiss with respect to the Tonnage Clause, Dormant Commerce Clause, and Rivers & Harbors 

Act, and granted it with respect to the Bane Act claim. ECF No. 29 at 19. It allowed the 

derivative claims for declaratory relief, injunctive relief, and restitution to survive. Id. at 18. 

Plaintiff filed its FAC on August 14, 2017. ECF No. 33. Defendants filed this motion for 

judgment on the pleadings on February 22, 2018. ECF No. 40. In the present motion, Defendants 

argue that the following claims fail as a matter of law: (1) Plaintiff’s claims for unjust enrichment 
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and declaratory relief to the extent they each rely on California Business and Professions Code 

section 23300; and (2) Plaintiffs’ claim for violation of the First Amendment right to access the 

courts.

III. REQUESTS FOR JUDICIAL NOTICE

Both Plaintiff and Defendants ask the Court to take notice of legislative history documents 

from the California legislature relating to California Business and Professions Code section 

23300.1. ECF Nos. 41, 43. 

Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not 

subject to reasonable dispute” because they are either “generally known within the trial court’s 

territorial jurisdiction,” or “can be accurately and readily determined from sources whose accuracy 

cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court concludes that the documents 

included by the parties are proper subjects of judicial notice and grants their respective requests. 

See Anderson v. Holder, 673 F.3d 1089, 1094 n. 1 (9th Cir. 2012) (citing Mack v. South Bay Beer 

Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (finding the Court “may take judicial 

notice of ‘records and reports of administrative bodies’”). 

IV. LEGAL STANDARD

“After the pleadings are closed – but early enough not to delay trial – a party may move for 

judgment on the pleadings.” Fed. R. Civ. P. 12(c). The analysis for Rule 12(c) motions for 

judgment on the pleadings is “substantially identical to [the] analysis under Rule 12(b)(6).” 

Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citation and quotation marks

omitted). Under both rules, “a court must determine whether the facts alleged in the complaint, 

taken as true, entitle the plaintiff to a legal remedy.” Brooks v. Dunlop Mfg. Inc., No. C 10–04341 

CRB, 2011 WL 6140912, at *3 (N.D. Cal. Dec. 9, 2011). A plaintiff must allege facts that are 

enough to raise his right to relief “above the speculative level.” Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 55 (2007) (citation omitted). “A judgment on the pleadings is properly granted when, 

taking all the allegations in the non-moving party’s pleadings as true, the moving party is entitled 

to judgment as a matter of law.” Fajardo v. Cty. of Los Angeles, 179 F.3d 698, 699 (9th Cir. 

1999) (citation omitted). “Finally, although Rule 12(c) does not mention leave to amend, courts 
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have discretion both to grant a Rule 12(c) motion with leave to amend, and to simply grant 

dismissal of the action instead of entry of judgment.” Lonberg v. City of Riverside, 300 F. Supp. 

2d 942, 945 (C.D. Cal. 2004) (citations omitted).

V. DISCUSSION

A. Law of the Case

Plaintiff argues that Defendants’ arguments for judgment on the pleadings are foreclosed 

by the law of the case because Defendants previously moved to dismiss the same claims they now 

attack here. ECF No. 42 at 12-13. The Court does not agree. 

Under the law of the case doctrine, a court may not consider “an issue that has already 

been decided by the same court or a higher court in the same case.” Ctr. for Biological Diversity 

v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013) (citations omitted). “[T]he law of the case acts as 

a bar only when the issue in question was actually considered and decided by the first court.” 

United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995), as amended on denial of reh’g (June 2, 

1995); Liberty Mut. Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir. 1982). As even Plaintiff 

recognizes, Defendants’ arguments in the present motion are not the same issues considered and 

decided by the Court before. Strigliabotti v. Franklin Resources, Inc., 398 F. Supp. 2d 1094, 1098

(N.D. Cal. 2005) (describing the same issues as ones which are “essentially the same, but with a 

different emphasis”). The law of the case doctrine therefore does not bar consideration of 

Defendants’ motion. 

B. California Business and Professions Code section 23300

Plaintiff brings claims for violation of California Business & Professions Code § 23300, 

which provides, “No person shall exercise the privilege or perform any act which a licensee may 

exercise or perform under the authority of a license unless the person is authorized to do so by a 

license issued pursuant to this division.” Cal. Bus. & Prof. Code § 23300. Plaintiff construes this 

provision to “prohibit[] Defendants from participating in, receiving, or sharing any revenue or 

profit from alcohol sales within the state.” FAC ¶ 13. Plaintiff seeks a declaration that 

Defendants’ alcohol-related charges are prohibited by Section 23300 and also seeks the return of 

any charges Defendants have already collected. Id. ¶¶ 85-96. 
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Defendants argue that Plaintiff cannot sue for an alleged violation of section 23300 

because that statute does not give contain a private right of action, and Plaintiff cannot indirectly 

create a private right of action by recasting its claims as ones for unjust enrichment and 

declaratory relief. ECF No. 40 at 13, 16. Defendants further argue that Plaintiff’s claim would 

fail even if the Court were to consider it on the merits because Defendants’ alcohol-related charges 

do not violation section 23300. Id. at 19. 

Defendants are correct that there is no private right of action for a violation of section 

23300. The California Constitution grants the Department of Alcoholic Beverage Control (“ABC 

Department”) exclusive jurisdiction to enforce the Alcoholic Beverage Control Act (“ABC Act”), 

including section 23300. See City of Oakland v. Superior Court, 45 Cal. App. 4th 740, 759 (1996) 

(citing Cal. Const., art. XX, § 22). Under California law, “a statute creates a private right of action 

only if the statutory language or legislative history affirmatively indicates such an intent.” 

Farmers Ins. Exch. v. Superior Court, 137 Cal. App. 4th 842, 850 (2006); see also id. at 849-50 

(“A statute creates a private right of action only if the enacting body so intended.”). The ABC Act 

does not provide for a private right of action. Cal. Bus. & Prof. Code § 23053.1 (entrusting the 

ABC Department with the power to bring an action to enforce the ABC Act). 

Plaintiff argues that a recent California Court of Appeal decision, Wiseman Park, LLC v. 

Southern Glazer’s Wine and Spirits, LLC, recognized that the ABC Department’s jurisdiction over 

ABC Act claims is not entirely exclusive. 16 Cal. App. 5th 110, 123-24 (2017). Plaintiff in that 

case was a restaurant that sometimes purchased alcoholic beverages from the defendant wholesale 

distributor. Both were licensed by the ABC. Defendant’s form contract required a customer 

whose invoice was unpaid by a certain time to pay a “carrying charge” in addition to the interest 

“penalty” mandated by the Alcohol Beverage Control Act. The plaintiff sued the defendant 

seeking return of the excess charges. In assessing whether it had jurisdiction over the claim, the 

Wiseman court distinguished between two types of claims: claims about whether non-licensees are 

performing acts that require a license, such as selling alcohol, on the one hand, and other claims, 

such as contract disputes between licensees, on the other hand. Id. at 125-26. The court 

concluded that the former are under the ABC Department’s exclusive jurisdiction, while the latter
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are not. Id. at 121, 126 (citing California v. LaRue 409 U.S. 109, 120 (1972) and Sail’er Inn, Inc. 

v. Kirby, 5 Cal.3d 1, 20–21 (1971) for the proposition that the ABC Department has exclusive 

jurisdiction to enforce improprieties with the sale of alcoholic beverages). 

Here, Plaintiff’s claims are, at bottom, that Defendants are improperly acting as licensees 

by sharing in the revenues of alcohol sales. ECF No. 42 at 13-14 (arguing that as non-licensees, 

Defendants are unlawfully exercising a privilege of a licensee when they seek revenue-sharing 

fees from alcohol sales). Accordingly, Plaintiff’s claims fall within the former category and are

barred by the ABC Act’s exclusive jurisdiction. Wiseman does not change the Court’s conclusion 

that Plaintiff lacks a private right of action to sue for a violation of section 23300. 

That Plaintiff’s claims are denominated “declaratory relief” and “unjust enrichment” also 

does not change this result. When a plaintiff lacks a private right of action under a particular 

statute, she cannot argue around that limitation by bootstrapping her cause of action onto an unjust 

enrichment or declaratory relief claim based on the same statute. Peterson v. Cellco Partn., 164 

Cal. App. 4th 1583, 1596-97 (Cal. App. 4th Dist. 2008); see also N. County Comms. Corp. v. 

California Catalog & Tech., 594 F.3d 1149, 1158 (9th Cir. 2010) (same with respect to 

declaratory relief). 

Plaintiff argues that the more recent California Supreme Court case of Lu v. Hawaiian 

Gardens Casino, Inc., 50 Cal. 4th 592, 594 (2010), allows a plaintiff to bring common law causes 

of action related to a violation of law even where there is no private right of action. In Lu, the 

plaintiff – a casino dealer – sued his employer for pooling tips in violation of Labor Code section 

351. That section “prohibits employers from taking any gratuity patrons leave for their 

employees, and declares that such gratuity is ‘the sole property of the employee or employees to 

whom it was paid, given, or left for.’” Id. at 594 (quoting Cal. Lab. Code § 351). The casino’s 

policy required dealers to contribute 15 to 20 percent of their tips to a tip pool to be shared among 

other designated employees who provided service to casino patrons. 

The court concluded that section 351 did not “contain a private right to sue.” Id. at 595. In 

dicta, however, the court recognized that although a plaintiff could not sue for violations of section 

351 because it lacked a private right of action, id. at 597, she could, in theory, bring common law 
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claims, such as a claim for conversion, regarding the same conduct: 

Contrary to plaintiff's suggestion, our holding that section 351 does 

not provide a private cause of action does not necessarily foreclose 

the availability of other remedies. To the extent that an employee 

may be entitled to certain misappropriated gratuities, we see no 

apparent reason why other remedies, such as a common law action 

for conversion, may not be available under appropriate 

circumstances. 

Id. at 603-04. Lu does not assist Plaintiff. The common law claims imagined by the Lu court 

existed independently of section 351, and Plaintiff could prove (or at least allege) the elements of 

those claims without relying on that section. By contrast here, Plaintiff’s claims expressly 

incorporate section 23300, and ask the Court to find a violation. 

Finally, even if the Court were to consider Plaintiff’s section 23300 claims on the merits, 

they would fail as a matter of law. Section 23300 does not preclude a municipality from 

establishing rental fees based on a percentage of a business’ total gross revenue, even if that 

revenue includes alcohol sales.2 Under section 23300, “[n]o person shall exercise the privilege or 

perform any act which a licensee may exercise or perform under the authority of a license unless 

the person is authorized to do so by a license issued pursuant to this division.” Cal. Bus. & Prof. 

Code § 23300. California courts have interpreted section 23300 to provide “that no person may 

perform any act for which a license is required under the Act unless the person is so authorized 

under a license.” Richards v. Dep’t of Alcoholic Beverages Control, 139 Cal. App. 4th 304, 313 

(2006); see also Quan v. San Francisco Police Dep’t, No. C 10-01835 MEJ, 2012 WL 4477621, at 

*5 (N.D. Cal. Sept. 27, 2012) (interpreting section 23300 to prohibit the sale of an alcoholic 

beverage without a license). A license issued by the Department of Alcohol and Beverage Control 

allows a licensee to manufacture, import and sell alcoholic beverages in the State. Cal. Const. art. 

XX, § 22. Licensees are authorized to, for example, (a) deliver or receive deliveries of distilled 

spirits, (b) store, bottle, cut, blend, mix, flavor, color, label, and package distilled spirits, (c) store 

 

2

 As previously noted, Plaintiffs’ second cause of action is titled “Declaratory and Injunctive 

Relief,” but requests only “a declaration of rights,” and “a declaratory judgment.” FAC ¶¶ 85-89. 

Plaintiff argues that Defendants “do not challenge Plaintiff’s injunctive relief claim to the extent it 

is based on section 23300.” ECF No. 42 at 20 n. 5. However, there is no such claim in the 

complaint. 
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and deliver distilled spirits, and (d) sell wine. Cal. Bus. & Prof. Code § 23355.1; see also id.§§ 

23356 et seq. (authorizing beer tasting, wine blending, wine growing, importing and other specific 

activities). Here, Defendants are not attempting to sell, manufacture, import or otherwise exercise 

any privilege or perform any act that reserved for those with a license. Thus, Section 23300 does 

not apply to the revenue-sharing agreement presented by Defendants.

Plaintiffs argue that a recently enacted statute, section 23300.1, provides the “only 

exception” to section 23300’s bar on non-licensees exercising the privileges of licensees, and 

helps to explain – by implication – why section 23300 bars the revenue-sharing agreement at 

issue. ECF No. 42 at 14-15. Section 23300.1 provides that “written agreement[s] regarding the 

sharing or splitting of gross revenue from the sale of alcoholic beverages between a licensee and a 

district agricultural association . . . . is not the exercise of a license privilege or performance of an 

act for which a license is required, unless the agreement, or any other related agreement or 

understanding, results in an unlicensed person exercising control or undue influence over a 

licensee or the operation of a licensed business.” Cal. Bus. & Prof. Code § 23300.1. In other 

words, the California legislature recently clarified that state fairs are not required to become 

licensees in order to enter into written agreements to share revenues from alcohol beverage sales 

by licensees. 

Section 23300.1 does not describe revenue-sharing as an exercise of a privilege or 

performance. Rather, the language of the statute confirms that this kind of agreement is not an 

exercise of a privilege or performance of an act specifically reserved for licensees “unless the 

agreement . . . results in an unlicensed person exercising control or undue influence over a 

licensee or the operation of a licensed business.” Cal. Bus. & Prof. Code § 23300.1 (emphasis 

added). “Ordinarily, the words of the statute provide the most reliable indication of legislative 

intent.” People v. Jefferson, 21 Cal. 4th 86, 94, 980 P.2d 441, 446 (1999) (citation omitted). 

To the extent the statute is ambiguous, “a court may consider extrinsic evidence of the 

legislature’s intent,” including “the statutory scheme of which the provision is a part, the history 

and background of the statute, the apparent purpose, and any considerations of constitutionality.” 

Hughes v. Bd. of Architectural Exam’rs, 17 Cal. 4th 776, 772 (1998)). The legislative history of 
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section 23300.1 also suggests that a revenue-sharing agreement does not violate the statute. That 

history shows that the statute’s author intended to “clarify that the mere existence of revenuesharing agreements does not constitute the exercising of license privileges.” ECF No. 41 at 7 

(emphasis added).3 Thus, to the extent the language and legislative history of section 23300.1 can 

be read to favor either side in this case, they favor the Defendants. 

In short, Plaintiff’s claims for unjust enrichment and declaratory relief based on Section 

23300 fail as a matter of law, and Defendants’ motion for judgment on these claims is 

GRANTED.

C. Plaintiff’s First Amendment Claim for Denial of Access to the Courts Fails

Plaintiff alleges that Defendants have interfered with its right to access the courts protected 

by the First Amendment Right to Petition by including a liability waiver in the 2016 Landing

Agreement, and refusing to allow Plaintiff to use the guest docks at South Beach Harbor until 

Plaintiff signs the agreement. Defendants argue that Plaintiff cannot bring this claim because 

(1) to bring a claim based on a coerced waiver, Plaintiff must identify the legal claims that are 

extinguished by the waiver; and (2) Plaintiff must actually be subject to the waiver. ECF No. 40 

at 24. The second of these arguments is persuasive. 

Plaintiff’s first argument derives from Christopher v. Harbury, 536 U.S. 403 (2002). In 

that case, Jennifer Harbury alleged that “Government officials intentionally deceived her in 

concealing information that her husband, a foreign dissident, was being detained and tortured in 

his own country by military officers of his government, who were paid by the Central Intelligence 

Agency (CIA).” Id. at 405. Harbury alleged that this official deception denied her access to the 

courts “by leaving her without information, or reason to seek information, with which she could 

 

3

The legislative history of section 23300.1 cites to an Attorney General opinion from 1966, which 

explained that a licensee “may enter into a sublease or concession agreement for the operation of a 

cardroom on the licensed premises” on the condition that the licensee “retain[] full authority over 

the sale of alcoholic beverages, enforcement of the laws and Department [of Alcohol Beverage 

Control] rules relating to the sale of alcoholic beverages, and where no part of the revenue from 

the sale of such beverages inures to the benefit of the cardroom operator.” ECF No. 43 at 22. The 

legislative history of 23300.1 shows that the Attorney Genereal misunderstood the scope of 

Section 23300. 
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have brought a lawsuit that might have saved her husband's life.” Id. The Supreme Court held 

that Harbury did not state an actionable claim. One basis for its holding was that Harbury failed to 

identify an underlying cause of action she would have raised had it not been for the government’s 

deception. Id. The Supreme Court explained that the right of access to the courts “is ancillary to 

the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of 

court.” Id. at 415. “Even in forward-looking . . . actions to remove roadblocks to future litigation, 

the . . . plaintiff must identify a nonfrivolous, arguable underlying claim.” Id. This rule is 

supported by basic notions of due process. “Like any other element of an access claim, the 

underlying cause of action . . . must be addressed by allegations in the complaint sufficient to give 

fair notice to a defendant.” Id. at 416. 

The present case is distinguishable from Harbury. There, the plaintiff failed to identify 

any claim she would have brought had she not been misled. By contrast here, Lil’ Man’s

complaint contains precisely the claims it would bring in the absence of a waiver – because it has 

actually brought them. As Plaintiff states in its opposition, “the 2016 Landing Agreement . . . 

means [Plaintiff’s] claims in this lawsuit (e.g., the Tonnage Clause, Rivers & Harbors Act, 

Commerce Clause, and others) are entirely waived.” ECF No. 42 at 24. This satisfies the 

requirement that Plaintiff identify its underlying claim. 

Defendants’ second argument, that Plaintiff cannot sue because it is not (yet) actually 

subject to the waiver, is more persuasive. Avalos v. Baca is instructive. In that case, plaintiff was 

“over-detained” by the Los Angeles Sheriff’s Department, which should have transferred him to 

another county upon arrest but instead kept him in custody for two months. Avalos v. Baca, 596 

F.3d 583, 585-86 (9th Cir. 2010). On the day of plaintiff’s release, a sheriff’s deputy handed him 

an agreement to release any potential claims against LASD in exchange for $500, and a few weeks 

later deputies came to his home with a release and a check in that amount. Id. at 586. Although 

he did not speak English or understand the paperwork, he signed the release and cashed the check. 

Avalos later sued the LASD and individual deputies, alleging not only claims for over-detention, 

but also a claim for what he denominated a “coercive in-custody settlement process” in violation 

of 42 U.S.C.A. § 1983. Id. at 589. 
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The district court granted summary judgment in defendants’ favor on this claim, and the 

Ninth Circuit affirmed. The court held, “[b]ecause a coerced waiver does not extinguish a 

detainee's claim for over-detention or false imprisonment, there is no freestanding constitutional 

right to be free of a coercive waiver. Id. at 590-91 (quotation and citation omitted). When a 

plaintiff brings a lawsuit for an unconstitutional condition, the defendant may raise a waiver of 

that right as an affirmative defense, and the plaintiff can then attack the waiver by showing it was 

coerced or provided involuntarily. Id. The existence of the waiver itself – coercive or not – does 

not provide the basis for a claim. Id.

Similarly here, there is no freestanding coercive waiver claim. Plaintiff must actually sign 

the waiver, then see if Defendants assert it. At that point, Plaintiff can dispute its validity. But 

Lil’ Man may not bring a standalone claim for coercive waiver, because the law does not 

recognize such a claim. Accordingly, the Court GRANTS Defendants’ motion for judgment on 

the pleadings with respect to Plaintiff’s access to the courts claim.4

CONCLUSION

For the aforementioned reasons, Defendants’ motion for judgment on the pleadings as to 

Plaintiff’s First Amendment, and section 23300 unjust enrichment and declaratory relief claims is 

GRANTED with prejudice.

The Court sets a further case management conference on November 7, 2018 at 2:00 p.m. 

An updated joint case management statement is due October 31, 2018. 

IT IS SO ORDERED.

Dated: September 4, 2018

______________________________________

JON S. TIGAR

United States District Judge

 

4

In light of this conclusion, the Court need not reach Defendants’ two remaining arguments 

regarding Plaintiff’s First Amendment claim.