Jeremy A. Moore v. County of Los Angeles et al

Filing 39

ORDER by Judge Otis D Wright, II: denying 33 Defendant County of Los Angeless Motion to Dismiss. (lc)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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I.

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CASE NO. CV 10-07694 ODW (SSx)

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Plaintiff,
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v.
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COUNTY OF LOS ANGELES; et al. )
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Defendants.
_________________________________)
JEREMY A. MOORE,

ORDER DENYING Defendant’s
Motion to Dismiss [33] (Filed
05/05/11)

INTRODUCTION

Currently before the Court is Defendant County of Los Angeles’s (the “County”)

19 Motion to Dismiss Plaintiff Jeremy A. Moore’s (“Plaintiff”) First Amended Complaint
20 (“FAC”). (Dkt. No. 33.) Plaintiff filed an Opposition on May 19, 2011, to which
21 Defendant filed a Reply on May 27, 2011.

(Dkt. Nos. 36, 37.) Having carefully

22 considered the papers filed in support of and in opposition to the instant Motion, the Court
23 deems the matter appropriate for decision without oral argument. See FED. R. CIV. P. 78;
24 L.R. 7-15. For the following reasons, the County’s Motion to Dismiss is DENIED.
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II.

FACTUAL BACKGROUND

Plaintiff was employed by the County in the District Attorney’s Office (“DAO”)

27 from approximately March 9, 2008 through March 9, 2009. (FAC ¶ 7.) On or about
28 March 24, 2008, the Association of Deputy District Attorneys (“ADDA”) was certified

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1 as a “full-fledged public employees union” representing the prosecutors of Los Angeles
2 County Bargaining Unit 801. (FAC ¶¶ 2, 13.) Plaintiff alleges that the County vis-a-vie
3 District Attorney Steven Cooley (“Cooley”), and several other “top ranking officials,”
4 including Peter Bliss, Pam Booth, Jacquelyn Lacey, John Spillane, and Julie Dixon Silva
5 (collectively, the “Supervisory Defendants”), subsequently instituted an office-wide anti6 union discrimination policy against Deputy District Attorneys (“DDAs”) who supported
7 and/or were members of the ADDA. (FAC ¶¶ 2, 10, 15, 17.) Plaintiff claims that the
8 Supervisory Defendants had authority over promotions, demotions, transfers, discipline,
9 and termination within the DAO, and thus they were able to discriminate against
10 employees that supported and/or joined the ADDA. (FAC ¶ 10.) Plaintiff further alleges
11 that, prior to his employment with the DAO, several DDAs – including Steven Ipsen,
12 Marc Debbaudt, Hyatt Seligman, Robert Dver, and John Harold – had already been
13 retaliated against for their involvement and/or support of the ADDA. (FAC ¶¶ 15-19, 26.)
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As to Plaintiff’s own claim of retaliation, Plaintiff alleges that sometime around the

15 first month of his employment, he spoke to Cooley about the formation of a union, and
16 that Cooley responded with a “dirty look.” (FAC ¶ 24.) Additionally, Plaintiff avers that
17 he was told by the DDAs in charge of training that association with ADDA members was
18 “not a good idea.” (FAC ¶ 25.) Finally, Plaintiff states that on or about October 16, 2008,
19 Cooley’s agents unlawfully obtained signature cards and/or documents containing the
20 names of DDAs who signed cards indicating their support of the ADDA. (FAC ¶ 27.)
21 Plaintiff maintains that his name appears on one of these signature cards and/or in these
22 documents. (FAC ¶ 27.) Consequently, Plaintiff argues that because he supported the
23 ADDA, Defendants discriminated against him and refused to retain him at the end of his
24 one-year probationary period despite his “competent” work performance. (FAC ¶ 30.)
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On March 3, 2011, the Court granted both the County and Cooley’s separate

26 Motions to Dismiss Plaintiff’s Complaint. (Dkt. No. 24.) Subsequently, on March 24,
27 2011, Plaintiff filed a First Amended Complaint alleging two causes of action under 42
28 U.S.C. § 1983 for violation of his constitutional rights of: (1) freedom of association, and

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1 (2) freedom of speech. (Dkt. No. 27.) On May 5, 2011, the County brought the instant
2 Motion to Dismiss the FAC.1 (Dkt. No. 33.)

III.

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LEGAL STANDARD

“To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a

5 complaint generally must satisfy only the minimal notice pleading requirements of Rule
6 8(a)(2).” Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires “a
7 short and plain statement of the claim showing that the pleader is entitled to relief.” FED.
8 R. CIV. P. 8(a)(2). For a complaint to sufficiently state a claim, its “[f]actual allegations
9 must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp.
10 v. Twombly, 550 U.S. 544, 555 (2007). Mere “labels and conclusions” or a “formulaic
11 recitation of the elements of a cause of action will not do.” Id. Rather, to overcome a
12 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to
13 state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
14 (2009) (internal quotation marks omitted). “The plausibility standard is not akin to a
15 probability requirement, but it asks for more than a sheer possibility that a defendant has
16 acted unlawfully. Where a complaint pleads facts that are merely consistent with a
17 defendant’s liability, it stops short of the line between possibility and plausibility of
18 entitlement of relief.” Id. (internal citation and quotation marks omitted).
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When considering a 12(b)(6) motion, a court is generally limited to considering

20 material within the pleadings and must construe “[a]ll factual allegations set forth in the
21 complaint . . . as true and . . . in the light most favorable to [the plaintiff].” Lee v. City of
22 L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citing Epstein v. Washington Energy Co., 83 F.3d
23 1136, 1140 (9th Cir. 1996)).

A court is not, however, “required to accept as true

24 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
25 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
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On May 11, 2011, former Defendant Steve Cooley was dismissed from this case pursuant to
the parties’ stipulation. (Dkt. No. 34.) In addition to the County, five additional Defendants were
named in the FAC. Because these five Defendants have not joined in the instant Motion, any claims
against them necessarily survive the County’s Motion to Dismiss.
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IV.

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DISCUSSION

The County moves to dismiss Plaintiff’s FAC, asserting that the “FAC – like [the]

3 original Complaint [] – fails to plead sufficient factual matter to state a § 1983 claim
4 against the County under Monell v. New York City [Department] of Social [Services], 436
5 U.S. 658 [] (1978).”2 (Mot. at 1.) Under § 1983, “[e]very person who, under color of any
6 statute . . . custom, or usage, of any State . . . subjects, or causes to be subjected, any
7 citizen of the United States . . . to the deprivation of any rights . . . secured by the
8 Constitution . . . shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983.
9 Although municipalities are not liable for the actions of their employees under a
10 respondeat superior theory, they can be sued under § 1983 where it is shown that “the
11 action [] alleged to be unconstitutional implements or executes a policy statement,
12 ordinance, regulation, or decision officially adopted and promulgated by that body’s
13 officers.” Monell, 436 U.S. at 690. Indeed, “liability may attach to a municipality only
14 where [the] [municipality] itself causes the constitutional violation through execution of
15 a government’s policy or custom, whether made by its lawmakers or by those whose edicts
16 or acts may fairly be said to represent official policy. Ulrich v. City & Cnty. of San
17 Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (emphasis added). A plaintiff may establish
18 the existence of such a policy under Monell in one of three ways: “(1) that a [municipal]
19 employee was acting pursuant to an expressly adopted official policy; (2) that a
20 [municipal] employee was acting pursuant to a longstanding practice or custom; or (3) that
21 a [municipal] employee was acting as a ‘final policymaker.’” Lytle v. Carl, 382 F.3d 978,
22 982 (9th Cir. 2004).
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Plaintiff in this case does not argue that Cooley or the Supervisory Defendants were

24 acting pursuant to an expressly adopted official policy from either the DAO or from the
25 County. Rather, Plaintiff only frames the alleged discriminatory policy as a longstanding
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In conjunction with its Motion to Dismiss, the County asks the Court to take judicial notice
of the fact that the County has thirty-seven departments, one of which is the DAO. (Def.’s RJN at 1-2.)
Additionally, the County requests that the Court take judicial notice of the “Civil Service Rules for the
County of Los Angeles.” (Def.’s RJN at 2; Exh. A.) For purposes of the instant Motion, the Court finds
it unnecessary to take judicial notice of either. Consequently, the County’s request is DENIED.
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1 practice or custom, or as a policy created by a final policymaker. The Court will address
2 each of these concepts in turn.
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A.

LONGSTANDING PRACTICE OR CUSTOM

A longstanding practice or custom is an act or a series of acts that has not been

5 formally approved by an appropriate decision maker, but is so “persistent and widespread”
6 that it constitutes a “permanent and well settled city policy.” Monell, 436 U.S. at 691.
7 Such a longstanding practice or custom “may not be predicated on isolated or sporadic
8 incidents; it must be founded upon practices of sufficient duration, frequency and
9 consistency that the conduct has become a traditional method of carrying out policy.”
10 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Thus, where there is a longstanding
11 practice or custom “which constitutes the ‘standard operating procedure’ of the local
12 government entity,” the municipality will be liable under § 1983. Jett v. Dallas Indep.
13 Sch. Dist., 491 U.S. 701, 737 (1989). Additionally, “[t]he plaintiff[] need not specifically
14 allege a custom or policy; it is enough if the custom or policy can be inferred from the
15 allegations of the complaint.” Shaw v. Cal. Dept. of Alcoholic Beverage Control, 788 F.2d
16 600, 610 (9th Cir. 1986).
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Here, the County argues that Plaintiff’s FAC “still alleges no facts to support his

18 bare conclusion that the County had . . . a longstanding practice or custom that constitutes
19 the County’s standard operating procedure.” (Mot. at 1.) Specifically, the County
20 contends that Plaintiff fails to allege that Cooley and the Supervisory Defendants were
21 acting pursuant to a longstanding practice or custom to discriminate against DDAs who
22 supported the ADDA. (Mot at 8.) Plaintiff, however, avers that on or about December
23 28, 2007, Cooley engaged in a campaign of retaliation against DDAs who supported or
24 participated in union activities, and continued to do so until at least March 9, 2009, when
25 Plaintiff’s employment was allegedly terminated for his association with the ADDA.
26 (FAC ¶¶ 14-15, 30.) In this respect, Plaintiff points to the facts that (1) Cooley told his
27 agents to seize union related documents, (2) Cooley’s agents refused to distribute a
28 memorandum to all DAO prosecutors indicating that the DAO would not retaliate against

ADDA members, (3) Cooley did not lower ADDA member’s health insurance monthly
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1 fees when all other County employees health care costs were lowered, and (4) that Cooley
2 otherwise tried to discourage or undermine union support. (FAC ¶¶ 14, 15, 20, 24-27.)
3 Plaintiff further alleges that several other DDAs were retaliated against by or through
4 Cooley for their association with the ADDA. (FAC ¶¶ 15, 17-19, 26). Specifically,
5 Plaintiff claims that the president of the ADDA, Steven Ipsen, was given unwarranted
6 ratings on his performance evaluation on July 14, 2009; and that the vice president of the
7 ADDA, Marc Debbaudt, who had been a prosecutor in the DAO for over twenty years,
8 was transferred to an entry-level assignment at Pomona Juvenile Court. (FAC ¶¶ 17, 18.)
9 Additionally, Plaintiff alleges that Robert Dver was transferred and stripped of his
10 supervisory tasks after he refused to follow Cooley’s instructions to undermine the
11 ADDA; and that Hyatt Seligman, an ADDA board member with over thirty years of
12 experience in the DAO, was punitively transferred, stripped of all training obligations for
13 new DDA’s, not given any cases relating to his area of expertise, and given poor
14 performance reviews. (FAC ¶¶ 15, 19.)
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Accepting these allegations as true, which the Court must do when deciding a

16 motion to dismiss, the abovementioned facts regarding Cooley and the Supervisory
17 Defendants’ actions towards ADDA members, including Plaintiff, are sufficient at this
18 stage of the litigation. (FAC ¶¶ 33, 39.) Furthermore, to the extent the County argues that
19 any instances of anti-union behavior were sporadic and isolated and thus insufficient to
20 establish a claim under § 1983, the Court finds that the abovementioned allegations
21 regarding retaliation against other DDAs specifically controvert any assertion that any
22 retaliation against Plaintiff was an isolated incident. Consequently, the Court finds
23 Plaintiff’s allegations sufficient to state a claim for Monell liability under a longstanding
24 practice or custom theory.
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B.

FINAL POLICYMAKER

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A final policymaker is an official that “speak[s] with final policymaking authority”
for a municipality concerning the allegedly unconstitutional action at issue. Jett, 491 U.S.
at 737. An official may have also been delegated final policymaking authority by a
municipality in instances where “the official’s discretionary decision is [not] ‘constrained
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1 by policies not of that official’s making’ and . . . [not] ‘subject to review by the
2 municipality’s authorized policymakers.’” Ulrich, 308 F.3d at 986 (quoting Christie v.
3 Iopa, 176 F.3d 1231, 1236-37 (9th Cir. 1999)). To be a final policymaker, the official
4 must be in a position of authority such that “a final decision by that person may
5 appropriately be attributed to the [defendant public body].” Lytle, 382 F.3d at 983.
6 Ultimately, “[w]hether a particular official has ‘final policymaking authority’ is a question
7 of state law.” Id. at 982.
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While the County asserts that the “FAC does not purport to allege that Cooley or

9 any of these ‘senior officials’ were final policymaker[s] for the County,” (Mot. at 8),
10 Plaintiff specifically alleges that Supervisory Defendants Peter Bliss, Pam Booth,
11 Jacquelyn Lacey, John Spillane, and Julie Dixon Silva had authority over “promotions,
12 demotions, transfers, discipline, and termination within the [DAO] . . . ,” and that they
13 engaged in a “policy of discrimination” in connection with Cooley’s “campaign of
14 retaliation against those DDAs who supported or participated in union activities.” (FAC
15 ¶¶ 10, 15.) Additionally, Plaintiff claims that Cooley had the ability to keep ADDA
16 employees’ health insurance monthly fees fixed when all other County employees fees
17 were reduced. (FAC ¶ 20.) Assuming Plaintiff’s allegations in this respect are true, which
18 the Court must do, Plaintiff successfully alleges that Cooley and the Supervisory
19 Defendants either had final policymaking authority or had been delegated such authority
20 by the County.
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Furthermore, to the extent that the County argues that the District Attorney (“DA”)

22 is not a final policymaker for the County as a matter of law (Mot. at 8-9), California
23 statutory provisions indicate that: (1) DAs are listed as county officers; (2) counties set
24 DAs’ salaries; (3) DAs must be registered to vote in their respective counties; (4) counties
25 supervise DAs’ conduct and use of public funds; and (5) DAs can be removed from office
26 following the same procedures applied to other district, county, and city officers, i.e., a
27 grand jury submitting a written accusation to a state court. See CAL. GOV’T CODE §§
28 24000(a), 24001, 25300, 25303, 3060, 3073; see also Weiner v. San Diego Cnty., 210

F.3d 1025, 1029-31 (9th Cir. 2000) (holding that California law suggests that a district
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1 attorney is an officer of the county in some instances). A review of these statutes suggests
2 that the DA may be a final policymaker for the County. Accordingly, the Court is unable
3 to conclude at this stage of the litigation that Cooley was not a final policymaker. See
4 Ulrich, 308 F.3d at 985. Indeed, “these inquires may turn on questions of fact.” Id.

V.

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CONCLUSION

At this stage of the litigation, the Court finds that Plaintiff has sufficiently alleged

7 that Cooley and the Supervisory Defendants were acting pursuant to a longstanding
8 practice or custom, and/or that Cooley and the Supervisory Defendants are final
9 policymakers. Consequently, the Court finds Plaintiff’s allegations sufficient to state a
10 claim for relief under Monell. The County’s Motion to Dismiss is DENIED.
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IT IS SO ORDERED.

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June 21, 2011
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HON. OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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