Linder v. Golden Gate Bridge, Highway & Transportation District et al

Filing 44

ORDER by Judge Samuel Conti granting 9 Motion to Dismiss; granting 21 motion for leave to file untimely opposition brief. The complaint is dismissed without prejudice and leave to amend is granted. Plaintiff shall file an amended complaint within thirty (30) days. (sclc2, COURT STAFF) (Filed on 4/17/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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PAUL LINDER,

)
)
Plaintiff,
)
)
v.
)
)
GOLDEN GATE BRIDGE, HIGHWAY &
)
TRANSPORTATION DISTRICT, a Special )
District; LISA LOCATI individually )
and as Bridge Captain of the
)
District, and DOES 1 to 10,
)
)
Defendants.
)
)
)
)
)

Case No. 14-CV-03861 SC
ORDER GRANTING LEAVE TO
FILE UNTIMELY OPPOSITION
BRIEF AND GRANTING MOTION
TO DISMISS

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I.

INTRODUCTION
Now before the Court are two intertwined motions in this case

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alleging constitutional, employment, and tort claims against

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Defendants the Golden Gate Bridge, Highway & Transportation

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District ("the District") and Bridge Captain Lisa Locati

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(collectively, "Defendants") stemming from the termination of

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Plaintiff Paul Linder's employment with the District.

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Defendants moved to dismiss Linder's complaint, ECF No. 1 ("Compl."

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or "Complaint") for failure to state a claim.

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Plaintiff's counsel ("Counsel") missed the deadline to file an

First,

ECF No. 9 ("MTD").

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opposition to that motion, ECF No. 19 ("Cert. of Non-Opp'n"), and

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as a result, moved for leave to file an untimely opposition brief,

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arguing that his neglect in missing the deadline was excusable.

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ECF No. 21 ("Timing Mot.").

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schedule, ECF No. 30, both motions are fully briefed,1 and

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appropriate for resolution without oral argument under Civil Local

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Rule 7-1(b).

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untimely opposition brief is GRANTED.

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dismiss is GRANTED.

Pursuant to a Court-ordered briefing

For the reasons set forth below, leave to file the
Defendants' motion to

United States District Court

For the Northern District of California

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II.

BACKGROUND
Linder was employed by the District in various roles for 21

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years.

At the relevant times he served as a Bridge Lieutenant, and

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from 2004 to 2012 he was also the Assistant Rangemaster and (later)

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Rangemaster.

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responsible for firearms training and certification for District

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employees.

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specified in the Complaint, Bridge Captain Locati removed Linder

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from the role of Rangemaster.

As Assistant Rangemaster and Rangemaster, he was

In January or February of 2012, for reasons not

Several months later, Locati told Linder he would be

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interviewed by an outside investigator who was looking into

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complaints concerning the District's compliance with regulations

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governing weapons permitting and licensing.

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subsequent investigation by the California Bureau of Security and

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Investigative Services ("the Bureau") and California Department of

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Justice ("CDOJ") concluded that the District paid a retired former

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That interview and

ECF Nos. 26 ("Timing Opp'n"); 31 ("Opp'n"); 32 ("Timing Reply");
33 ("Reply").

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employee to sign off on District firearms certifications without

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knowledge of whether the individuals in question were actually

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qualified for certification.

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investigation, Linder also revealed that Locati misrepresented the

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retired former employee's date of retirement to conceal that the

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District lacked an active Rangemaster (as is apparently required)

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from March 2003 until 2004.

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Linder was the "central cause" of the Bureau's decision to revoke

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permits allowing the District to qualify and re-qualify its

Over the course of that

This and other information provided by

United States District Court

For the Northern District of California

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personnel to carry firearms.

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result of the revocation of the District's permits, the District

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was required to use private range services to comply with firearm

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regulations.

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ECF No. 1 ("Compl.") at ¶ 23.

As a

The District sought to terminate Linder's employment on two

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occasions.

First, on July 9, 2012, Linder was given a letter of

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intent to terminate his employment based on his submission of two

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allegedly incorrect dates on documents submitted to the Bureau.

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After that meeting, Linder was escorted from the premises and told

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not to return, and he continued on unpaid leave until September

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2012, when his termination was overturned.

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overturned after his counsel submitted proof that Linder had, in

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fact, followed the District's policies and procedures in submitting

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documents to the Bureau.

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incidents of allegedly retaliatory conduct by Locati, who assigned

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him to an unprecedented and undesirable schedule, excessively

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scrutinized his conduct, and placed unique conditions on his

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return.

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conduct, however the District's human resources department rejected

His termination was

Nonetheless, his return was mired by

Linder filed a grievance complaining about this alleged

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the grievance and refused Linder's parallel request for an

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investigation of allegations of wrongdoing leveled by Locati.
Linder was finally terminated in February 2014.

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Several

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months prior to his actual termination, in October 2013, Linder

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reported a security issue to Locati.

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ordered Linder undergo a "fitness for duty"2 examination.

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being cleared to return to duty, Linder was placed on

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administrative leave, and in late December 2013, Locati "initiated

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an Intent to Terminate memorandum"3 for Linder, citing various

Two months later, Locati
Despite

United States District Court

For the Northern District of California

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alleged instances of Linder's failure to perform certain job

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duties.

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terminating Linder, the District cited four issues: (1) an incident

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with an individual who attempted to climb a cable on the Golden

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Gate Bridge, (2) a written warning regarding a complaint from the

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California Highway Patrol about Linder's response to a car

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accident, (3) Linder's response to a potential suicide, and (4)

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Linder's allegedly aggressive behavior toward a trespassing jogger.

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Id. at ¶ 47.

On February 19, 2014, Linder was terminated.

In

Subsequently, Linder filed this suit alleging five claims

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against Locati and the District: (1) retaliation in violation of

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California Labor Code Section 1102.5(b), (2) violations of Linder's

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This term and other apparent terms of art like "Brady hearing,"
or "Bridge Lieutenant" are not always clearly defined either in the
Complaint or the parties' briefs. Obviously the Court can surmise
the meaning of some of these terms based on context (although the
Court shares Defendants' confusion about the references to Brady,
see Mot. at 16 n.2). However, in the future the parties should
explain terms like these unless their meanings are truly clear from
context or are well known.
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Again, this term is not defined. Given that this is a case about
the termination of Linder's employment, the details of how
employment decisions are made at the District are highly relevant
and should be included in an amended complaint.

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First, Fifth, and Fourteenth Amendment rights under 42 U.S.C.

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Section 1983, (3) violation of the Bane Act, California Civil Code

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Section 52.1, and (4) intentional infliction of emotional distress.
When the case was filed it was initially assigned to

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Magistrate Judge Westmore.

While Linder consented to magistrate

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judge jurisdiction, ECF No. 7, Defendants did not file a consent or

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declination to magistrate judge jurisdiction until after filing

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their motion to dismiss.

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motion to dismiss was noticed before Judge Westmore with the

ECF No. 12 ("Notice").

As a result, the

United States District Court

For the Northern District of California

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opposition brief due on October 28, 2014.

ECF No. 13.

After the

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case was reassigned to the undersigned, notices were issued

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informing the parties that the hearing dates were vacated, and

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motions should be re-noticed before the undersigned.

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15.

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stated, "[b]riefing schedules . . . remain[ed] unchanged."

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1 (citing Civ. L.R. 7-7(d)).

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the motion to dismiss stated the correct deadline, October 28,

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2014, Counsel did not file a responsive brief on that day.

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Instead, on November 5, 2014, Defendants filed a certification of

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no opposition.

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Counsel filed a motion to retroactively extend the opposition

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deadline, arguing that his failure to respond on the appropriate

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date was due to the innocent miscalculation of deadlines based on

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the date of the renoticed motion, and the absence of an associate

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due to a death in the family.

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coupled with other relevant facts, renders his neglect in failing

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to timely respond to Defendants' motion excusable.

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oppose the request for leave to file the untimely brief, and argue

ECF Nos. 14-

Nevertheless, as the order reassigning the case, ECF No. 15,
Id. at

While the docket entry re-noticing

Cert. of Non-Opp'n at 1-2.

Realizing his mistake,

In Counsel's view, this explanation,

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Defendants

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the Complaint should be dismissed either for Counsel's failure to

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file a timely response or on the merits of the motion to dismiss.

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III. LEGAL STANDARDS

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A.

Leave to File Untimely Brief

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The Court has discretion to retroactively extend deadlines

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under Federal Rules of Civil Procedure 6(b) and 60(b)(1) provided

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that a party shows its neglect in missing the deadline was

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excusable.

In determining whether the parties have shown excusable

United States District Court

For the Northern District of California

10

neglect, the Court considers four factors (the "Pioneer factors"):

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(1) the danger of prejudice to the nonmoving parties, (2) the

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length of delay, (3) the reason for the delay, and (4) whether the

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movant acted in good faith.

14

Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993); Silber v.

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Mabon, 18 F.3d 1449, 1455 (9th Cir. 1994).

See Pioneer Inv. Servs. Co. v.

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B.

Rule 12(b)(6)

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A motion to dismiss under Federal Rule of Civil Procedure

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12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

19

Block, 250 F.3d 729, 732 (9th Cir. 2001).

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on the lack of a cognizable legal theory or the absence of

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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.

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1988).

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief."

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Iqbal, 556 U.S. 662, 679 (2009).

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must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions.

"Dismissal can be based

"When there are well-pleaded factual allegations, a court

Ashcroft v.

However, "the tenet that a court

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Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice."

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Twombly, 550 U.S. 544, 555 (2007)).

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complaint must be both "sufficiently detailed to give fair notice

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to the opposing party of the nature of the claim so that the party

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may effectively defend against it" and "sufficiently plausible"

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such that "it is not unfair to require the opposing party to be

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subjected to the expense of discovery."

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1202, 1216 (9th Cir. 2011).

Id. (citing Bell Atl. Corp. v.
The allegations made in a

Starr v. Baca, 652 F.3d

United States District Court

For the Northern District of California

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IV.

DISCUSSION
Determining whether to grant Linder's counsel's request for an

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extension of the opposition deadline is a threshold question.

In

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other words, if the Court finds that Linder's counsel's neglect in

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missing the applicable deadline was inexcusable, then dismissal may

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be appropriate.

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F. App'x 524, 525 (9th Cir. 2013).

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addresses that issue first.

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neglect in missing the opposition deadline was excusable, the Court

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then turns to the merits of Defendants' motion to dismiss.

See Tabi v. Pasadena Area Cmty. Coll. Dist., 510
As a result, the Court

Because the Court finds Counsel's

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A.

Motion for Enlargement of Time

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Counsel points to two causes for the delay in filing an

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opposition brief: (1) confusion stemming from the reassignment of

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the case from Judge Westmore to the undersigned, and (2) the

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absence of an associate assigned to this case due to a death in the

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family.

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prejudice to Defendants, Counsel's undisputed good faith, and the

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short length of the delay at issue, Counsel argues his neglect in

Coupling these explanations with the apparent lack of

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2

failing to file a timely opposition is excusable.
Defendants disagree with several of these points, but dedicate

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a significant amount of their opposition to various procedural

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issues with the motion to extend time.

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argue that because Counsel filed his motion under Civil Local Rule

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7-2 (not Rule 6-3, which governs motions to change time), and did

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not submit a declaration setting forth the reasons for the

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enlargement of time, efforts to stipulate, harm or prejudice that

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will result, discloses previous time modifications, and describes

Specifically, Defendants

United States District Court

For the Northern District of California

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the effects on the case management schedule as required Rule 6-

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3(a), the motion should be denied.

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previously denied motions for failure to comply with aspects of

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Local Rule 6-3, including the declaration requirement.

14

Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 SC, 2015 WL 846546,

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at *2 (N.D. Cal. Feb. 25, 2015); McCreary v. Celera Corp., No. 11-

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1618 SC, 2011 WL 1399263, at *2 (N.D. Cal. Apr. 13, 2011).

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However, in each of those cases, the procedural deficiencies left

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the Court without sufficient facts to decide the motion.

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all, that is the purpose of the declaration requirement in Civil

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Local Rule 6-3 -- ensuring the Court has sufficient facts to

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address the merits of requests to enlarge time.

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denying motions to change time for failing to comply with Local

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Rule 6-3, the Court finds that even if Counsel's motion is

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procedurally defective, it still provides sufficient facts to

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assess the merits of the motion.

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for procedural deficiencies under these circumstances would elevate

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form over substance.

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proper under the rules and consider the merits of Plaintiff's

True, the undersigned has

See e.g.,

After

Here, unlike cases

As a result, denying the motion

Thus the Court will construe the motion as

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request.
The Court finds that the Pioneer factors weigh in favor of

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granting leave to file the untimely opposition brief.

First, while

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Defendants complain they were prejudiced by having to respond to

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Counsel's motion, and some (relatively minor) delay did occur in

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the period of uncertainty over how to proceed with briefing these

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motions, any prejudice here was insubstantial.

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granting leave to file an opposition brief under these

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circumstances would do little more than deny Defendants "a quick

On the contrary,

United States District Court

For the Northern District of California

10

but unmerited victory, the loss of which we do not consider

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prejudicial."

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1262 (9th Cir. 2010).

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delay was "unknown," the relevant period of delay is the eight days

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between the opposition deadline and Counsel's motion.

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fairly minor delay.

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1220, 1225 (9th Cir. 2000) (finding neglect was excusable despite a

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month delay).

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justification for an attorney's delay," contrary to Defendants'

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assertions, Timing Opp'n at 5, even calendaring mistakes are

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compatible with findings of excusable neglect.

21

F.3d at 1262; see also Pincay v. Andrews, 389 F.3d 853, 860 (9th

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Cir. 2004) (finding excusable neglect despite the failure to

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correctly apply a clear local rule); Bateman, 231 F.3d at 1225

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(concluding the excusable neglect standard was satisfied despite a

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month-long delay during which an attorney was recovering from jet

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lag and reviewing mail).

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undisputed.

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Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,
Second, while Defendants argue the length of

This is a

Cf. Bateman v. U.S. Postal Serv., 231 F.3d

Third, while a calendaring mistake is a "weak

See Ahanchian, 624

Finally, Counsel's good faith is

As a result, the Court finds that Counsel's neglect in failing

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to file a timely opposition was excusable.

Therefore, the motion

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for leave to file the untimely opposition to Defendants' motion to

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dismiss is GRANTED.

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carefully review and follow the Local Rules, as the Court may

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strike portions of future filings that fail to comply or impose

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other appropriate sanctions.

In the future, however, Counsel is advised to

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B.

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Linder alleges four types of claims: (1) First, Fifth, and

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Motion to Dismiss

Fourteenth Amendment claims under 42 U.S.C. Section 1983, (2)

United States District Court

For the Northern District of California

10

whistleblower retaliation contrary to California Labor Code Section

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1102.5(b), (3) violation of the Bane Act, California Civil Code

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Section 52.1, and (4) intentional infliction of emotional distress.

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The Court will address each of these claims in turn.

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1.

Section 1983 Claims

To state a claim under Section 1983, Linder must show that "an

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individual acting under the color of state law deprived him of a

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right, privilege, or immunity protected by the United States

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Constitution or federal law."

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903, 905 (9th Cir. 2008) (citing Lopez v. Dep't of Health Servs.,

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939 F.2d 881, 883 (9th Cir. 1991).

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and the District, acting under color of state law, deprived him of

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his Fifth and Fourteenth Amendment due process rights and his First

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Amendment free speech rights.

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Amendment claims are meritless, because the Fifth Amendment applies

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only to federal actors, not state or local government actors like

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Locati or the District.

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(9th Cir. 2001).

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Amendment claims against Locati or the District, such claims are

Levine v. City of Alameda, 525 F.3d

Linder alleges that both Locati

As Defendants point out, the Fifth

See Lee v. City of L.A., 250 F.3d 668, 687

Accordingly, to the extent Linder alleges Fifth

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1

DISMISSED.

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claims, the dismissal is WITH PREJUDICE.

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Further, because amendment would be futile as to those

Linder's claims under the Due Process Clause of the Fourteenth

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Amendment merit more attention.

Due process claims are analyzed in

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two steps.

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963, 967-68 (9th Cir. 2011).

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whether Linder had a property interest in continued employment.

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See id. at 968.

9

Linder did, in fact, have a "property interest" in continued

See Walls v. Cent. Contra Costa Transit Auth., 653 F.3d
First, the Court must determine

Second, and only if the Court determines that

United States District Court

For the Northern District of California

10

employment does the Court determine whether Linder received all the

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process he was due.

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interests subject to federal due process protections.

13

Gebbie, 859 F.2d 1543, 1547-48 (9th Cir. 1988).

14

See id.

State law defines the property
See Brady v.

Linder has not adequately alleged a property interest in

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continued employment.

Under California law, public employees that

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are employed at-will do not have property interests in continued

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employment.

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(Cal. Ct. App. 1993); see also Kaye v. Bd. of Trs. of the San Diego

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Cnty. Law Library, No. 07-cv-921 WQH (WMc), 2008 U.S. Dist. LEXIS

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45604, at *12 (S.D. Cal. June 10, 2008).

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the District's enabling legislation provides for "employ[ment] and

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discharge at pleasure [of] all subordinate officers, employees and

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assistants."

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pleasure" "means one is an at-will employee who can be fired

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without cause."

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1694 (Cal. Ct. App. 1996) (citing Bogacki v. Bd. of Supervisors, 5

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Cal. 3d 771, 783 (Cal. 1971)).

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allege facts that, contrary to this statutory language, he is not

See Binkley v. Long Beach, 16 Cal. App. 4th 1795, 1808

As Defendants point out,

Cal. Sts. & Hwy. Code § 27151.

The phrase "at

Hill v. City of Long Beach, 33 Cal. App. 4th 1684,

As a result, unless Linder can

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an employee at will, he cannot state a claim for violations of due

2

process in terminating his employment under Section 1983.
Linder's rejoinders -- (1) that the District should be

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4

judicially estopped from arguing he is an employee at will based on

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another case in this district, Alarid v. Golden Gate Bridge Highway

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& Transportation District, No. 3:08-cv-2845-WHA (N.D. Cal.) Dkt.

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Nos. 48, 58, at 21:21-22, and (2) human resources policies provide

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for termination only for cause -- are either misguided or have not

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been pleaded.

As Defendants point out, Alarid does not support

United States District Court

For the Northern District of California

10

Linder's judicial estoppel argument because it involved allegations

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by a bridge patrol officer, a unionized District employee with

12

additional protections and process that Linder, as a non-unionized

13

bridge lieutenant, was not entitled to.4

14

that the District has taken inconsistent positions in these two

15

cases, an essential element for invoking judicial estoppel.

16

Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.

17

2001).

18

he argues that a memorandum of understanding between the District

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and a union and human resources policies contradict the statute,

20

and provide for termination only for cause.

21

may be meritorious, it is not pleaded in Linder's Complaint, and

22

thus the Court need not address it.

23

Co., 961 F. Supp. 2d 1062, 1078 (N.D. Cal. 2013) ("[I]n determining

24

the propriety of a Rule 12(b)(6) dismissal, a court may not look

25

4

26
27
28

Thus, Linder cannot show

See

Finally, in Linder's opposition brief (not his Complaint),

While this argument

See Bruton v. Gerber Prods.

Defendants filed a request for judicial notice, ECF No. 34,
attaching a declaration filed in Alarid and an unpublished
California Superior Court decision. Because these documents are
"not subject to reasonable dispute," and "can be accurately and
readily determined from sources whose accuracy cannot reasonably be
questioned," Federal Rule of Evidence 201(b), the request is
GRANTED and the Court takes judicial notice of these documents.

12

1

beyond the complaint to a plaintiff's moving papers, such as a

2

memorandum in opposition to a motion to dismiss."); see also McGraw

3

v. City of Huntington Beach, 882 F.2d 384, 389 (9th Cir. 1989)

4

(citing Skelly v. State Personnel Bd., 15 Cal. 3d 194, 207 (1975))

5

(concluding that under California law, "a public employee . . . who

6

can establish the existence of rules and understandings,

7

promulgated and fostered by state officials, that justify her

8

legitimate claim to continued employment absent sufficient cause,

9

has a property interest in such continued employment within the

United States District Court

For the Northern District of California

10
11

purview of the due process clause.").
Accordingly, Linder's Fourteenth Amendment claims are

12

DISMISSED.

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is GRANTED to cure the deficiencies set forth above.

14

The dismissal is WITHOUT PREJUDICE, and leave to amend

Next, Linder alleges that his termination violated his First

15

Amendment rights.

16

its position as employer to stifle 'the First Amendment rights its

17

employees would otherwise enjoy as citizens to comment on matters

18

of public interest.'"

19

(9th Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th

20

Cir. 2009)) (internal alteration omitted).

21

cases involving public employees, the Court must seek "a balance

22

between the interests of the [employee], as a citizen, in

23

commenting on matters of public concern and the interest of the

24

State, as an employer, in promoting the efficiency of the public

25

services it performs through its employees."

26

Educ., 391 U.S. 563, 568 (1968).

27

refined into five steps querying:

28

"It is well settled that the state may not abuse

Dahlia v. Rodriguez, 735 F.3d 1060, 1066

In First Amendment

Pickering v. Bd. of

This balancing test has been

(1) whether the plaintiff spoke on a matter of

13

public concern; (2) whether the plaintiff spoke
as a private citizen or public employee; (3)
whether the plaintiff's protected speech was a
substantial or motivating factor in the adverse
employment action; (4) whether the state had an
adequate
justification
for
treating
the
employee differently from other members of the
general public; and (5) whether the state would
have taken the adverse employment action even
absent the protected speech.

1
2
3
4
5
6

Eng, 552 F.3d at 1070.

7

fatal to a plaintiff's case.

8
9

Failure to meet any one of these steps is
See Dahlia, 735 F.3d at 1067 n.4.

Defendants do not focus on whether Linder has satisfied these
criteria, instead arguing that because they did not intend to

United States District Court

For the Northern District of California

10

inhibit Linder's free speech, his claims must be dismissed.

See

11

Mendocino Envt'l Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th

12

Cir. 1999).

13

allegations that Locati and the District directed him to speak with

14

investigators as evidence that they lacked intent to chill Linder's

15

speech.

More concretely, Defendants point to Linder's

16

Linder, for his part, does not respond to this argument,

17

instead largely addressing arguments that Defendants did not press

18

in their opening brief, and as a result, the Court need not address

19

the issue.

20

Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) (quotation

21

omitted)("[I]n most circumstances, failure to respond in an

22

opposition brief to an argument put forward in an opening brief

23

constitutes waiver or abandonment in regard to the uncontested

24

issue.").

25

is (citing the wrong paragraphs of his Complaint) that the

26

Complaint pleads "Defendant [sic] has taken the aforementioned

27

actions against Plaintiff in direct retaliation for, and in

28

response to, the various protected activities of Plaintiff and the

See Stichting Pensioenfonds ABP v. Countrywide Fin.

At best, Linder's only response to Defendants' argument

14

1

prospect of Plaintiff engaging in such activities."

2

This allegation is conclusory and unsupported by any facts pleaded

3

in the Complaint.

4

weight.

5

Compl. ¶ 68.

Accordingly, the Court gives this allegation no

See Iqbal, 556 U.S. at 679.

As a result, Linder's First Amendment retaliation claims are

6

also DISMISSED.

7

identified above.

8
9

Leave to amend is GRANTED to cure the deficiencies

Defendants also contend that Linder failed to sufficiently
allege the District's liability under Section 1983.

There is no

United States District Court

For the Northern District of California

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respondeat superior liability for municipalities or local

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government agencies under Section 1983.

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Servs. of N.Y., 436 U.S. 658, 691 (1978).

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seeking to hold a municipality or local government entity liable

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for its employees' acts must allege "Monell liability," which

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"attach[es] when an employee is acting pursuant to an expressly

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adopted official policy, longstanding practice or custom, or as a

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final policymaker."

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1170 (9th Cir. 2014).

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See Monell v. Dep't Soc.
Instead, a plaintiff

Thomas v. Cnty. of Riverside, 763 F.3d 1167,

Linder's exact theory of Monell liability is unclear.

While

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Defendants believe Linder intends to proceed on an improper policy

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theory, Reply at 7, his Complaint seemingly alleges that Monell

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liability is proper under either an improper policy or final

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policymaker theory (with Locati as the final policymaker).

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Compl. ¶¶ 10, 68-69.

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inadequately pleaded under either theory.

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allege even the existence of an official policy of retaliation

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against whistleblowers, thus he cannot proceed on a policy theory.

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See Dugan v. Cnty of Los Angeles, No. 2:11-cv-08145-ODW (SHx), 2012

See

Nevertheless, Linder's claims are

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First, Linder does not

policy claim for failure to allege any facts supporting the

3

existence of the asserted policy); see also AE ex rel. Hernandez v.

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Cnty. of Tulare, 666 F.3d 631, 636-38 (9th Cir. 2012).

5

Linder makes nothing more than conclusory allegations that Locati

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was a final policymaker or that a final policymaker ratified her

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actions.

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2d 1188, 1214 (N.D. Cal. 2012).

9

point out, California law (which is controlling on the question of

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United States District Court

WL 1161638, at *4-5 (C.D. Cal. Apr. 9, 2012) (dismissing a Monell

2

For the Northern District of California

1

whether Locati is a final policymaker) seemingly provides that the

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District's general manager, not Locati, the Bridge Captain, is the

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final policymaker.

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Similarly,

See Turner v. City & Cnty. of San Francisco, 892 F. Supp.
On the contrary, as Defendants

See Cal. Sts. & Hwy. Code § 27151.

As a result, Defendants' motion to dismiss Linder's claims

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under Section 1983 is GRANTED.

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and leave to amend is GRANTED to cure the deficiencies set forth

16

above.

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2.

The dismissal is WITHOUT PREJUDICE,

Labor Code Section 1102.5(b)

California Labor Code Section 1102.5(b) states that "[a]n

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employer . . . shall not retaliate against an employee for

20

disclosing information . . . to a government or law enforcement

21

agency . . . if the employee has reasonable cause to believe that

22

the information discloses a violation of state or federal statute,

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or a violation or noncompliance with a state or federal rule or

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regulation."

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(1) that he was terminated after reporting a violation of or

26

noncompliance with state or federal law, and (2) a causal

27

connection between the termination and reporting the violation.

To state a claim under this section, Linder must show

28

16

1

Edgerly v. City of Oakland, 211 Cal. App. 4th 1191, 1199 (Cal. Ct.

2

App. 2012).
As Defendants point out, Linder does not identified any

3
4

federal or state law, rule, or regulation that the District

5

violated in the Complaint.

6

Convenience Retailers, LLC, 2013 WL 5340396, at *2 (N.D. Cal. Sept.

7

24, 2013) ("Plaintiff must identify some federal or state law,

8

rule, regulation that was either violated or that Defendants failed

9

to comply with.").

This is insufficient.

See Dauth v.

As a result, Defendants' motion to dismiss

United States District Court

For the Northern District of California

10

these claims is GRANTED WITHOUT PREJUDICE.

11

GRANTED to plead the alleged violations set forth in Plaintiff's

12

opposition brief or others.
3.

13

Leave to amend is

Bane Act and Intentional Infliction of Emotional
Distress

14

Finally, Defendants move to dismiss Plaintiff's allegations

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16

under the Bane Act, California Civil Code Section 52.1, and for

17

intentional infliction of emotional distress.

18

Plaintiff offers to eliminate these claims from his amended

19

complaint to narrow the issues for trial.

20

allegations are DISMISSED.

In his opposition,

As a result, the

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23

V.

CONCLUSION
For the reasons set forth above, Plaintiff's motion to extend

24

the deadline for filing an opposition brief is GRANTED.

25

Defendants' motion to dismiss is GRANTED, and the Complaint is

26

DISMISSED WITHOUT PREJUDICE.

27

deficiencies set forth in this order.

28

amended complaint within thirty (30) days.

Leave to amend is GRANTED to cure the

17

Plaintiff may file an
Failure to file an

1

amended complaint within the time allotted may result in dismissal

2

with prejudice.

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4

IT IS SO ORDERED.

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Dated: April 17, 2015
UNITED STATES DISTRICT JUDGE

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United States District Court

For the Northern District of California

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