James Bozajian v. County of Los Angeles et al
Filing
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ORDER DENYING DEFENDANTS CONVERTED MOTION FOR SUMMARY JUDGMENT 41 , MOTION TO DISMISS 34 , AND MOTION TO STRIKE 35 . Defendants shall file their answer to the Second Amended Complaint within 14 days of this order by Judge Otis D. Wright, II. (lc) . Modified on 1/29/2013 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JAMES BOZAJIAN,
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v.
Plaintiff,
COUNTY OF LOS ANGELES; STEVE
COOLEY, individually and in his official
capacity; CURTIS HAZELL, individually
and in his official capacity; JOHN
SPILLANE, individually and in his official
capacity; JOHN ZAJEC, individually and
in his official capacity; JACQUELYN
LACEY, individually and in her official
capacity; JANET MOORE, individually
and in her official capacity; SHARON
MATSUMOTO, individually and in her
official capacity and DOES 1–10;
Case No. 2:12-cv-00625-ODW(JCx)
ORDER DENYING DEFENDANTS’
CONVERTED MOTION FOR
SUMMARY JUDGMENT [41],
MOTION TO DISMISS [34], AND
MOTION TO STRIKE [35]
Defendants.
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Defendants County of Los Angeles, Steve Cooley, Curtis Hazell, John Spillane,
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John Zajec, Jacquelyn Lacey, Janet Moore, and Sharon Matsumoto filed three motions
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with this Court. The first is Defendants’ Motion to Dismiss. (ECF No. 34.) The
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Court converted the Motion to Dismiss into a motion for summary judgment on the
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sole issue of statute of limitations (i.e., the second motion). (ECF No. 41.) The third
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motion is Defendants’ Motion to Strike. (ECF No. 35.) For the reasons explained
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below, the three motions are DENIED.1
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Having considered the papers filed in support of and in opposition to these motions, the Court
deems the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.
I.
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BACKGROUND
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Plaintiff James Bozajian has been employed since 1990 as a Deputy District
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Attorney (“Deputy DA”) for the County of Los Angeles. (SAC ¶ 8.) Defendant Steve
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Cooley was the District Attorney for the County of Los Angeles, and Defendants
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Curtis Hazell, John Spillane, John Zajec, Jacquelyn Lacey, Janet Moore, and Sharon
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Matsumoto were top ranking officials in the Cooley administration. (SAC ¶¶ 10–11.)
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Bozajian alleges that Defendants illegally discriminated against him at work, in
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matters pertaining to promotions, transfers, and discipline. (SAC ¶ 11.)
Cooley and Bozajian used to be friends—but through the years, they parted
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ways.
(SAC ¶¶ 23–25.)
Bozajian served on the Board of Directors for the
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Association of Deputy District Attorneys (“ADDA”), an organization that Cooley
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allegedly approved of at one time. (SAC ¶¶ 23–28.) After Cooley’s 2000 election
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victory, Bozajian claims that Cooley changed—he became critical of the ADDA.
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(SAC ¶¶ 29–32.)
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ADDA Board of Directors, and admitted that Bozajian was one of his top political
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enemies. (SAC ¶¶ 29–30, 33.)
Cooley allegedly urged Bozajian to not seek reelection to the
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Bozajian’s Second Amended Complaint recounts various incidents between
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2001 and 2010 where Defendants discriminated against him for either (1) affiliating
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with the ADDA, or (2) criticizing the Cooley administration. For instance, between
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2001 and 2010, Bozajian’s duty assignments were changed annually, something
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Bozajian claims is highly unusual for a Deputy DA of his seniority. (SAC ¶¶ 34–35.)
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He also alleges that these transfers were punitive, and happened not only to him, but
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to other top Deputy DAs that criticized Cooley. (SAC ¶¶ 36, 39–42, 88–99.)
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Bozajian admits that he publically criticized some of Cooley’s actions, as well
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as those of Cooley’s closest allies. For example, in 2005, Bozajian and the ADDA
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criticized Cooley for: his lawsuit seeking to overturn voter-imposed term limits; his
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political stance towards California’s Three Strikes law; and his derogatory comments
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concerning a jury that acquitted Robert Blake of murder. (SAC ¶¶ 43–46.) Bozajian
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also uncovered an instance of prosecutorial misconduct concerning a sexual-
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relationship cover-up, openly opposed Cooley in his 2008 reelection, and criticized
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Lacey in her 2009 efforts to become United States Attorney for the Central District of
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California. (SAC ¶¶ 54–72, 100–104, 114–118.)
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In addition to the punitive assignment transfers, Bozajian alleges that
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Defendants retaliated against his constitutionally protected activities by: unfairly
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denying him a promotion; improperly lowering his performance review; suspending
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him; and ransacking his office. (SAC ¶¶ 47–49, 51–53, 73–75, 102–104, 119–131.)
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Ultimately, Bozajian received a 30-day suspension, which began on January 25,
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2010. In response, Bozajian filed a complaint on January 26, 2010, with the Los
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Angeles County Civil Service Commission (“LACCSC”).
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Bozajian subsequently filed this federal suit and withdrew his complaint with the
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LACCSC. (SAC ¶ 135.)
(SAC ¶ 132–133.)
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Defendants now seek to dismiss Bozajian’s claims, contending that he: (1) is
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barred under the statute of limitations; (2) fails to allege with sufficient specificity
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what individual defendants have done; and (3) fails to state a Monell claim against the
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County. (ECF No. 34.) The Court converted the Motion to Dismiss, as to the statute
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of limitations issue, into a motion for summary judgment under Federal Rule of Civil
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Procedure 12(d). (ECF Nos. 40, 41.) Defendants also filed a Motion to Strike
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portions of Bozajian’s Second Amended Complaint, alleging those portions are
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immaterial, impertinent, and scandalous. (ECF No. 35.) The Court first turns to the
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statute of limitations issue.
II.
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A.
MOTION FOR SUMMARY JUDGMENT
Legal standard
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Summary judgment should be granted if there are no genuine issues of material
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fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
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P. 56(c). The moving party bears the initial burden of establishing the absence of a
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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
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Once the moving party has met its burden, the nonmoving party must go beyond the
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pleadings and identify specific facts through admissible evidence that show a genuine
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issue for trial. Id.; Fed. R. Civ. P. 56(c). Conclusory or speculative testimony in
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affidavits and moving papers is insufficient to raise genuine issues of fact and defeat
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summary judgment. Thornhill’s Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th
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Cir. 1979).
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A genuine issue of material fact must be more than a scintilla of evidence, or
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evidence that is merely colorable or not significantly probative. Addisu v. Fred
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Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). A disputed fact is “material” where the
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resolution of that fact might affect the outcome of the suit under the governing law.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). An issue is “genuine” if
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the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
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party. Id. Where the moving and nonmoving parties’ versions of events differ, courts
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are required to view the facts and draw reasonable inferences in the light most
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favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
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B.
Bozajian’s conduct suffices to invoke equitable tolling
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Defendants assert that the two-year statute of limitations has run for Bozajian’s
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civil rights claims. (Mot. Summ. J. at 3.) On October 19, 2009, Bozajian received a
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letter titled “Notice of Intent to Suspend.” (SAC ¶ 119.) On January 6, 2010, he
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received a “Notice of Suspension” letter. (SAC ¶ 129.) He then filed a complaint
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with the LACCSC on January 26, 2010, to contest his suspension. (SAC ¶ 132.)
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About two years later on January 24, 2012, he initiated this federal suit.
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The controlling statute of limitations for a claim arising under the Civil Rights
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Acts of 1866 and 1871 is the most appropriate one provided by state law. Donoghue
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v. County of Orange, 848 F.2d 926, 930 (9th Cir. 1987). The parties do not dispute
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that Bozajian’s claims are governed by the two-year statute of limitations under
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California Code of Civil Procedure section 351.1. And depending on the date of
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accrual for Bozajian’s claims, he may have run out of time.
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Assuming that the two-year statute of limitations has expired, Bozajian raises
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the defense of equitable tolling. Along with the limitations period, federal courts
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borrow a state’s equitable tolling rules for cases under the Civil Rights Acts, absent a
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reason not to do so. Bd. of Regents v. Tomanio, 446 U.S. 478, 486–87 (1980).
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California’s equitable tolling doctrine has three requirements: (1) timely notice to the
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defendant in filing the first claim; (2) lack of prejudice to defendant in gathering
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evidence against the second claim; and (3) good faith and reasonable conduct by the
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plaintiff. Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1137–38 (9th
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Cir. 2001).
Defendants only attack the good faith and reasonable conduct
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requirement. The Court finds no evidence suggesting that the first two requirements
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are not satisfied.
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allegations in his LACCSC complaint, there is no prejudice to them in gathering
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evidence for this federal case.
And because Defendants have been on notice of Bozajian’s
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The good faith and reasonable conduct requirement is not satisfied where a
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plaintiff “simply allowed the statute on his second claim nearly to run or deliberately
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misled the defendant into believing the second claim would not be filed.” Id. at 1138.
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But equitable tolling can still apply where a plaintiff voluntarily terminated an
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alternate proceeding. McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88,
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111–12 (2008).
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Defendants allege that the good faith and reasonable conduct requirement is not
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met because Bozajian strategically dropped his LACCSC complaint. (Mot. Summ.
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J. 5.) In response, Bozajian explained that:
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An attorney provided by the American Federation of State, County, and
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Municipal Employees (“AFSCME”) represented Bozajian in his
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LACCSC complaint. (Bozajian Decl. ¶ 3.)
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After about a year, in January 2011, Bozajian’s attorney had to withdraw
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because AFSCME withdrew funding—and so, Bozajian continued pro se
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in his case because he could not afford an attorney. (Id. ¶¶ 14–18.)
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Despite lasting another five months, Bozajian decided to drop his
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LACCSC complaint due to his workload and inexperience with civil
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cases. (Id. ¶¶ 17–20.)
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Bozajian then obtained an attorney on contingency to take up his cause,
and filed this federal suit on January 24, 2012. (Id. ¶¶ 22–23.)
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Given this evidence, the Court concludes that Bozajian acted reasonably and in
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good faith under the circumstances. The fact that he dropped his other proceeding
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does not show that he acted in bad faith. Other than this fact, Defendants cite no other
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evidence of bad faith.
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Defendants also claim that equitable tolling should not apply because Bozajian
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is now pursuing different remedies than those in his LACCSC complaint. (Mot.
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Summ. J. 4.) Yet the purpose of equitable tolling is to allow a plaintiff, when
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possessing several potential remedies as to one wrong, to pursue only one remedy as
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to that wrong and not lose the possibility of pursuing other remedies down the road.
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Daviton, 241 F.3d at 1141.
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LACCSC complaint and this federal suit is that of discrimination and retaliation for
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exercising his First Amendment rights. The remedies, however, are different—but
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this does not preclude Bozajian from seeking redress in this lawsuit given the similar
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underlying facts between his two cases.
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Here, the wrong that Bozajian alleges in both his
Thus, the Court finds that Bozajian is entitled to equitable tolling.
III.
MOTION TO DISMISS
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Bozajian’s Second Amended Complaint asserts four causes of action:
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(1) violation of the First Amendment (freedom of speech) against all individual
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Defendants; (2) violation of the First Amendment (freedom of speech) against the
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County; (3) violation of the First Amendment (freedom of association) against all
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individual Defendants; and (4) violation of the Fourteenth Amendment (equal
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protection) against all individual Defendants.
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addresses two overarching problems with the Second Amended Complaint—that it:
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Defendants’ Motion to Dismiss
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fails to adequately allege what the individual Defendants have done; and fails to state
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a Monell claim against the County. The Court addresses these two arguments in turn.
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A.
Legal standard
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Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal
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theory” or “the absence of sufficient facts alleged under a cognizable legal theory.”
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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint
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need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)—a short
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and plain statement—to survive a motion to dismiss for failure to state a claim under
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Rule 12(b)(6). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); Fed. R. Civ. P.
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8(a)(2). For a complaint to sufficiently state a claim, its “[f]actual allegations must be
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enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
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Twombly, 550 U.S. 544, 555 (2007). While specific facts are not necessary so long as
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the complaint gives the defendant fair notice of the claim and the grounds upon which
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the claim rests, a complaint must nevertheless “contain sufficient factual matter,
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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
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Iqbal, 556 U.S. 662, 678 (2009).
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Iqbal’s plausibility standard “asks for more than a sheer possibility that a
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defendant has acted unlawfully,” but does not go so far as to impose a “probability
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requirement.” Id. Rule 8 demands more than a complaint that is merely consistent
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with a defendant’s liability—labels and conclusions, or formulaic recitals of the
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elements of a cause of action do not suffice. Id. Instead, the complaint must allege
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sufficient underlying facts to provide fair notice and enable the defendant to defend
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itself effectively.
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determination whether a complaint satisfies the plausibility standard is a “context-
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specific task that requires the reviewing court to draw on its judicial experience and
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common sense.” Iqbal, 556 U.S. at 679.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
The
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When considering a Rule 12(b)(6) motion, a court is generally limited to the
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pleadings and must construe “[a]ll factual allegations set forth in the complaint . . . as
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true and . . . in the light most favorable to [the plaintiff].” Lee v. City of L.A., 250 F.3d
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668, 688 (9th Cir. 2001). Conclusory allegations, unwarranted deductions of fact, and
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unreasonable inferences need not be blindly accepted as true by the court. Sprewell v.
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Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Yet, a complaint should be
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dismissed only if “it appears beyond doubt that the plaintiff can prove no set of facts”
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supporting plaintiff’s claim for relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir.
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1999).
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B.
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Bozajian states sufficient facts to raise a right to relief
Defendants argue that the claims against them are overly broad and fail to
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“provide any insight as to the conduct of the individual defendants.”
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Dismiss 7–8.) Defendants contend that Bozajian’s vague allegations, spanning over a
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ten-year period, lack sufficient details to state a claim for relief, provide insufficient
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notice to give Defendants an opportunity to defend, and improperly meld all
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Defendants together as tortfeasors.
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The Court notes that Bozajian primarily directs his allegations towards Cooley.
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For instance, Bozajian alleges that: Cooley told him not to seek re-election to the
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ADDA Board of Directors (SAC ¶ 29); Cooley ordered punitive transfers for Bozajian
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(SAC ¶ 38); and Cooley stated that Bozajian was one of his top political enemies
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(SAC ¶ 33). Bozajian then asserts that the remaining individual Defendants—Hazell,
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Spillane, Zajec, Lacey, Moore, and Matsumoto—are top ranking Cooley-
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administration officials that carried out Cooley’s discrimination campaign against
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him. (SAC ¶¶ 11–14.)
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Yet there are few specific allegations against these other Defendants. For
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example, the only allegation specifically against Moore is that she signed the “Notice
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and Intent to Suspend” letter. (SAC ¶¶ 119–120.) Similarly, the only allegation
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specifically against Matsumoto is that she wrote and signed the “Notice of
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Suspension” letter. (SAC ¶ 130.) But Bozajian also alleges that both these acts—
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along with others—were performed under orders from Cooley and his staff. (SAC
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¶¶ 123–128.) Unlike in Iqbal, these facts are sufficient to state a cause of action
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against each of the individual Defendants.
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In Iqbal, the plaintiff pleaded that his jailers “kicked him in the stomach,
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punched him in the face, and dragged him across his cell without justification.” 556
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U.S. at 668. Then, plaintiff concluded that defendants Ashcroft and Mueller “knew
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of, condoned, and willfully and maliciously agreed to subject him to harsh conditions
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of confinement as a matter of policy, solely on account of his religion, race, and/or
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national origin.” Id. at 680–81. The Supreme Court ruled that while these alleged
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acts may give rise to a claim of relief against individual jailers (who were not named
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as defendants), these facts do not suffice for a claim against Ashcroft and Mueller
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because the pleaded facts do not suggest that the top U.S. law-enforcement officers
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adopted “a policy of classifying post-September-11 detainees as of high interest
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because of their race, religion, or national origin.” Id. at 682–84.
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In contrast, Bozajian alleges specific acts committed against him by top
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officials in the Cooley administration. He also alleges specific acts committed against
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him by Cooley. Bozajian then concludes that because of the individual Defendants’
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rank and close relationship with Cooley, they all had knowledge of the wrongdoing
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and were responsible. This contrasts with Iqbal, where the allegedly wrongful acts
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were committed by low-level employees—many pay grades below that of Ashcroft
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and Mueller—and presumably committed without express orders from them. But
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here, Bozajian’s allegations plausibly suggest that the individual Defendants—all top
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ranking Cooley-administration officials—carried out Cooley’s order and thus, each
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had a hand in violating his constitutional rights. Thus, the Court finds that the Second
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Amended Complaint states sufficient facts for relief against the individual Defendants.
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C.
Bozajian states sufficient facts for a Monell claim
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Municipalities can be held liable under section 1983 actions in three
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circumstances: (1) the employee acted according to an expressly adopted official
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policy; (2) the employee acted as a final policymaker; or (3) the employee acted
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according to a longstanding practice or custom. Webb v. Sloan, 330 F.3d 1158, 1164
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(9th Cir. 2003). In order to establish liability under a custom or practice, the plaintiff
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must show that the pattern of activity is persistent, widespread, and well-settled
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policy. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
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Bozajian alleges, as discussed above, retaliatory acts designed to punish him for
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exercising his first amendment rights, including punitive transfers, denial of
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promotion, poor performance reviews, and suspension. Although Bozajian only seeks
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redress for the suspension commencing on January 25, 2010, these other wrongful acts
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committed against him suggest that the Cooley administration had an informal
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practice of discriminating against those who affiliated with the ADDA or are critical
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of the Cooley administration. Further, Bozajian includes additional examples of this
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discriminatory practice applied to other Deputy DAs, such as the punitive transfers of
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Steve Ipsen and Marc Debbaudt. (SAC ¶¶ 39–42, 88–99.) Finally, by alleging these
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wrongful acts in light of his seniority and Cooley’s direct remarks against him and the
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ADDA, Bozajian presents sufficient evidence to suggest that these retaliatory acts
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carried out by Cooley’s staff, were done under direct orders from Cooley himself—the
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final policymaker at the Los Angeles County District Attorney’s Office. In short,
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assuming all of the allegations are true, the Court finds that the events complained
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about by Bozajian were plausibly performed under Cooley’s orders in retaliation
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against Bozajian’s criticism and his association with the ADDA. And thus, this is
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sufficient to support a Monell claim against the County.
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IV.
MOTION TO STRIKE
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Federal Rule of Civil Procedure 12(f) states that “[t]he court may strike from a
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pleading an insufficient defense or any redundant, immaterial, impertinent, or
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scandalous matter.”
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expenditure of time and money in litigating spurious issues by disposing of them prior
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to trial. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993).
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The function of a 12(f) motion to strike is to avoid the
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As to Defendants’ request to strike punitive damages, Bozajian properly seeks
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punitive damages against the individual Defendants, not in their official capacities, but
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in their individual capacities. See Hafer v. Melo, 502 U.S. 21, 25 (1991). And as to
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Bozajian’s allegations of retaliatory acts committed by the individual Defendants
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towards other Deputy DAs under the Cooley administration, these incidents are
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relevant to demonstrate a custom or practice, through which Bozajian may establish
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Monell liability against the County. The Court finds no reason to strike these portions
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of the Second Amended Complaint.
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Further, the Court also finds no reason to strike the portions of the Second
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Amended Complaint that narrate Defendant Hazell’s affair with a death penalty
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witness or refer to Cooley’s use of investigators to gag media coverage. The Hazell
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affair supports Bozajian’s claims that Cooley retaliated against him for exposing this
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incident. And the gagging account is another example of Cooley’s discrimination
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against the ADDA and those involved with the organization. Moreover, the Court
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does not find any of these allegations to be scandalous or offensive. Therefore,
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Defendants’ Motion to Strike is DENIED.
V.
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CONCLUSION
For the above reasons, the Court DENIES Defendants’ Motion for Summary
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Judgment, Motion to Dismiss, and Motion to Strike.
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Defendants shall file their answer to the Second Amended Complaint within 14 days
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of this order.
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(ECF Nos. 34, 35, 41.)
IT IS SO ORDERED.
Dated:
January 28, 2013
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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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