Ibarra v. City of Watsonville et al

Filing 33

ORDER granting 16 Motion to Dismiss; granting 18 Motion to Dismiss. Any amended complaint must be filed within thirty days of the date of this Order. Signed by Judge Edward J. Davila on 2/15/2013. (ejdlc4, COURT STAFF) (Filed on 2/15/2013) Modified on 2/15/2013 (ejdlc1, COURT STAFF).

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FRANCISCO IBARRA,
Plaintiff,

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v.
CITY OF WATSONVILLE ET AL.,
Defendants.

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’
CITY OF WATSONVILLE, MANNY
SOLANO, TERENCE MEDINA AND
CARLOS PALACIOS’ MOTION TO
DISMISS; GRANTING DEFENDANT
BELCHER, EHLE, MEDINA &
ASSOCIATES’ MOTION TO
DISMISS; GRANTING IN PART
DEFENDANTS’ MOTIONS FOR A
MORE DEFINITE STATEMENT
[Re: Docket Nos. 16, 18]

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Presently before the court are Defendants City of Watsonville (“the City”), Manny Solano

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(“Solano”), Terence Medina (“Medina”), Carlos Palacios (“Palacios”) and Belcher, Ehle, Median

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& Associates’ (“BEMA”) (collectively, “Defendants”) Motions to Dismiss Plaintiff’s First

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Amended Complaint (“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6) and Motions

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for a More Definite Statement pursuant to Federal Rule of Civil Procedure 12(f). Defendant

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BEMA has moved for such relief separately. The court has subject matter jurisdiction pursuant to

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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28 U.S.C. § 1331. The court found this matter suitable for decision without oral argument pursuant

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to Civil Local Rule 7-1(b) and previously vacated the hearing. Having reviewed the parties’

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briefing, the court GRANTS Defendants’ Motions to Dismiss, and GRANTS in part Defendants

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the City, Solano, Medina, and Palacios’ Motion for a More Definite Statement.

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I.

BACKGROUND
This retaliatory termination case arises out of Plaintiff Francisco Ibarra’s (“Plaintiff”)

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termination from the Watsonville Police Department (“the Department”). Plaintiff became a police

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officer in the Department on March 27, 1995 and remained employed there until his termination on

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United States District Court
For the Northern District of California

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May 10, 2010. FAC ¶¶ 3, 14, 47, Dkt. No. 9. The FAC essentially alleges that Chief of Police

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Medina and Deputy Chief Solano came to dislike Plaintiff and sought “any excuse or reason to

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terminate him.” FAC ¶ 41. Plaintiff points to a number of incidents allegedly leading to Medina

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and Solano’s distaste for him and evidencing their threats against him. For convenience, the court

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will group these allegations on-the-job incidents, internal complaints, and union activities.

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First, Plaintiff points to a number of incidents occurring on-the-job. Approximately thirteen

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years after joining the Department, Plaintiff was disciplined for his involvement in an incident in

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which carjack suspects were tased. FAC ¶ 20-25. Plaintiff refused to sign an agreement accepting

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the proposed punishment for this incident and consulted his union attorney regarding his rights,

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behavior which Plaintiff alleges caused then-Chief of Police Medina and then-Deputy Chief Solano

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to become “irate” and prompted them to intimidate and threaten him. FAC ¶ 24-25. Later,

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Plaintiff cited the Mayor of Watsonville for a violation of the vehicle code, which caused Medina

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to “express[] great anger towards [Plaintiff].” FAC ¶ 31. Following that incident, an excessive

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force complaint was filed against Plaintiff, which Plaintiff contends “was the perfect ‘vehicle’ for

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[Medina and Solano] to seize upon to fire Plaintiff” despite the fact that he was “cleared of any

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wrongdoing.” FAC ¶¶ 38-39. Most recently, Plaintiff withdrew his gun during a traffic stop of a

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speeding car, and though none of the defendants complained, Medina and Solano “claimed

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Plaintiff had committed some sort of violation in some unknown manner.” FAC ¶ 40.

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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Next Plaintiff points to internal complaints that he filed. He alleges that he prepared two or

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three written memoranda regarding a female officer, the wife of a lieutenant, whom he described

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“as not adequately backing up officers in dangerous situations.” FAC ¶ 30. However, these

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complaints “fell on deaf ears” and caused him to “suffer[] further harassment and persecution.” Id.

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Finally Plaintiff points to his union activities. Plaintiff alleges that the handling of the taser
incident allowed him “to become aware of the importance of a strong union” and he thereafter

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became “very active in the union.” FAC ¶ 26. “His efforts were fruitless” because the union

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president and Medina were “close personal friends and frequently played golf together.” FAC ¶ 27.

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United States District Court
For the Northern District of California

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So Plaintiff ran for President of the union, making campaign promises that “big changes” were in

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store and that the union “would go to bat for its officers.” FAC ¶ 28. Plaintiff won this election.

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Id. After Plaintiff became President, he spoke out on Medina and Solano’s “corruption,

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wrongdoing and misconduct,” causing Medina to “indicat[e] that he was determined to get rid of

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[Plaintiff].” FAC ¶ 29. In his capacity as union President, Plaintiff refused, despite pressure from

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Solano, to support a certain candidate for the California State Assembly. FAC ¶ 32. Also in his

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capacity as President, Plaintiff advised an officer regarding his rights during a 2008 internal

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investigation following that officer’s arrest for driving under the influence. FAC ¶¶ 33-35, 37.

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Plaintiff refused to falsely testify during this investigation that he had witnessed this officer being

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intoxicated. FAC ¶ 36. Plaintiff learned that Medina was angry over Plaintiff’s behavior during the

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investigation. FAC ¶ 35, 37.

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Shortly after the traffic stop incident, Plaintiff was placed into a temporary office position.

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Plaintiff alleges that at that time he was informed that Medina and Solano had initiated a “full

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investigation…into his past.” FAC ¶ 42. At some point after Plaintiff had been assigned the office

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position, Medina retired and informed Plaintiff that “he (plaintiff) would very soon be made an

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example for all of the department to see.” FAC ¶ 43. Solano assumed the position of Chief of

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Police, and allegedly immediately hired BEMA, Medina’s private investigation firm, to conduct an

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investigation into Plaintiff. Id. On February 10, 2010, after returning from a sick leave, Plaintiff

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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was escorted out of the office and had his gun and badge removed. FAC ¶ 45. Then on May 10,

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2010 Plaintiff was terminated. FAC ¶ 47.

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Plaintiff filed an appeal of his termination, but soon thereafter suffered a stroke. FAC ¶ 52.

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After recovering most of his physical abilities, his appeal was heard by a panel of commissioners

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appointed by members of the City Council. FAC ¶ 53. On November 13, 2011, the panel found in

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favor of the Plaintiff. FAC ¶ 54. The City took the panel’s decision under advisement, but

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ultimately City Manager Palacios rejected it, upholding the original termination. FAC ¶ 55.

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United States District Court
For the Northern District of California

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Plaintiff then filed this suit against Defendants the City, Palacios (the City Manager),
Solano (the Deputy Chief, and later the Chief of Police), Medina (Chief of Police), and BEMA

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(Medina’s private investigation firm) on May 4, 2012, bringing claims under 42 U.S.C. § 1983 for

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violation of his constitutional rights, the California’s Police Officer Bill of Rights (“POBR”), Cal.

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Gov. Code. §§ 3300-3313 and the Racketeer Influenced and Corrupt Organizations Act (RICO).

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Compl., Dkt. No. 1. On August 27, 2012 Plaintiff filed the FAC, which dropped the RICO cause

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of action. Dkt. No. 9. Defendants the City, Palacios, Medina and Solano filed their Motion to

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Dismiss on October 26, 2012, and Defendant BEMA filed its Motion to Dismiss on November 9,

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2012. The court now turns to the substance of these motions.

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim in the

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complaint with sufficient specificity to “give the defendant fair notice of what the ... claim is and

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the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may be

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dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

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Dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim is “proper only

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where there is no cognizable legal theory or an absence of sufficient facts alleged to support a

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cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 606 F.3d 658, 664 (9th

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Cir. 2010) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). In considering whether

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the complaint is sufficient to state a claim, the court must accept as true all of the factual

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a

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complaint need not contain detailed factual allegations, it “must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550

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U.S. at 570).

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If a district court considers evidence outside the pleadings in a motion to dismiss, it must
normally convert the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment, and must

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give the nonmoving party an opportunity to respond. See United States v. Ritchie, 342 F.3d 903,

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907 (9th Cir. 2003). A court may, however, consider documents attached to the complaint,

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United States District Court
For the Northern District of California

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documents incorporated by reference in the complaint, or matters of judicial notice without

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converting the motion to dismiss into a motion for summary judgment. Id. at 908. The court may

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treat such a document as part of the complaint, and may assume that its contents are true for

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purposes of a motion to dismiss under Rule 12(b)(6). See Knievel v. ESPN, 393 F.3d 1068, 1076

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(9th Cir. 2005).

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III.

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DISCUSSION
a. Claims against Defendant BEMA

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Defendant BEMA argues that Plaintiff’s First, Second, Third, and Fifth causes of action

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must be dismissed as against it because it was not incorporated during the relevant time period

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governing these claims. Plaintiff’s First, Second, and Third causes of action are retaliatory

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termination claims, and thus focus on activity prior to Plaintiff’s termination on May 10, 2010. See

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FAC ¶ 47. Plaintiff alleges that the Department hired BEMA in late 2009 to investigate him. FAC

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¶ 43. However, BEMA did not incorporate until September 13, 2010 1—six months after Plaintiff’s

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termination. The first three causes of action against BEMA are implausible because BEMA did not

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legally exist prior to Plaintiff’s termination. The court need not accept as true allegations that

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contradict facts which may be judicially noticed. See, e.g. MGIC Indem. Corp. v. Weisman, 803

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F.2d 500, 504 (9th Cir. 1986). Therefore, these three causes of action are DISMISSED without

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The court GRANTS Defendant BEMA’s Request for Judicial Notice pursuant to Federal Rule of Evidence 201
because the California Secretary of State incorporation record for BEMA is a fact “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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leave to amend as against BEMA. Plaintiff’s Fifth cause of action for civil conspiracy also relates

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to activity that allegedly occurred before Plaintiff’s termination, and thus is also DISMISSED

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without leave to amend as against BEMA. Plaintiff’s Fourth cause of action relates to his

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administrative appeal, which occurred in November 2011, and is discussed more fully later in this

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Order. Though BEMA was incorporated at the time of his appeal, Plaintiff has failed to allege any

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activity on the part of BEMA, let alone the “integral participation” necessary. Chuman v. Wright,

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76 F.3d 292, 294 (9th Cir. 1996) (citation omitted). Accordingly, Plaintiff’s Fourth cause of

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action is DISMISSED with leave to amend as against BEMA.

United States District Court
For the Northern District of California

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b. § 1983 Claims for Violation of Plaintiff’s Constitutional Rights
i. Monell Liability

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The City claims that Plaintiffs’ First, Second, Third, and Fourth causes of action must be

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dismissed as to it because Plaintiff has failed to properly plead a claim for municipal liability as

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required by Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978). In Monell, the

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Supreme Court held that a “local government may not be sued under § 1983 for an injury inflicted

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solely by its employees or agents.” 436 U.S. at 694. “Instead, it is when execution of a

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government's policy or custom, whether made by its lawmakers or by those whose edicts or acts

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may fairly be said to represent official policy, inflicts the injury that the government as an entity is

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responsible under § 1983.” Id. Accordingly, to state a claim for municipal liability under § 1983,

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a plaintiff must allege that (1) he was deprived of a constitutional right; (2) the municipality had a

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custom or policy; (3) that amounted to a deliberate indifference to the plaintiff's constitutional

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right; and (4) the policy was the moving force behind the constitutional violation. East v. City of

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Richmond, No. 10-CV-2392, 2010 WL 4580112 *3 (N.D. Cal. Nov. 3, 2010) (citing Monell, 436

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U.S. 658). Such a policy may be found in “(1) an express municipal policy, such as an ordinance,

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regulation, or policy statement; (2) a widespread practice that, although not authorized by written

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law or express municipal policy, is so permanent and well settled as to constitute a custom or usage

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with the force of law; or (3) the decision of a person with final policymaking authority ratifying a

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subordinate's unconstitutional decision or action and the basis for it.” Ramirez v. County of

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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Alameda, No. 12-CV-4852, 2013 WL 257087 *3 (N.D. Cal. Jan. 23, 2013) (citing City of St. Louis

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v. Praprotnik, 485 U.S. 112, 123–27 (1988)).

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Here, Plaintiff has pled that the City, its Chiefs of Police (Solano and Medina), and its City
Manager (Palacios) have violated his constitutional rights. Plaintiff argues that Defendants

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operated at “the very highest level” of the Department, and had the responsibility of giving final

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orders. Pl. Opp’n 9, Dkt. No. 26. “By definition,” Plaintiff argues, “their acts do represent official

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decisions.” Dkt. No. 26 at 8. That Plaintiff has named highly-ranked officials as Defendants does

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not satisfy Rule 8(a) or Monell’s requirements. See Pembauer v. City of Cincinnati, 475 U.S. 468,

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United States District Court
For the Northern District of California

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481-82 (1986) (“the fact that a particular official—even a policymaking official—has discretion in

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the exercise of particular functions does not, without more, give rise to municipal liability based on

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an exercise of that discretion”). Municipal liability attaches “where—and only where—a

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deliberate choice to follow a course of action is made from among various alternatives by the

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official or officials responsible for establishing final policy with respect to the subject matter in

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question.” Id. at 483. The FAC is devoid of allegations explaining how any decision or action

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taken by any of these Defendants reflects a “policy or custom” on the part of the City. Monell, 436

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U.S. at 694. Plaintiff has failed to allege that the Defendants had the responsibility of establishing

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final policy and what particular actions any of these Defendants took that may have constituted a

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“policy” sufficient to render the City subject to municipal liability. Accordingly, Plaintiff’s First

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through Fourth causes of action are DISMISSED with leave to amend as to the City.

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ii. Plaintiff’s First and Second Causes of Action for Retaliatory
Termination

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Plaintiff’s first two causes of action allege that Defendants retaliated against him for

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exercising his First Amendment rights in speaking out on alleged corruption and misconduct within

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the City police department and actively participating in and leading the police union. FAC ¶¶ 58,

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63. Defendants argue that these claims must be dismissed because the assertions are vague and do

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not demonstrate that Plaintiff engaged in speech on a matter of public concern. Individual

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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Defendants Palacios, Solano, and Medina further contend that they are entitled to qualified

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immunity for Plaintiff’s First and Second Causes of action.

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1. Matters of Public Concern

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The Supreme Court has established that “when a public employee speaks not as a citizen
upon matters of public concern, but instead as an employee upon matters only of personal interest,

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absent the most unusual circumstances, a federal court is not the appropriate forum in which to

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review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the

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employee's behavior.” Connick v. Myers, 461 U.S. 138, 147 (1983). Thus, to establish a claim of

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United States District Court
For the Northern District of California

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First Amendment retaliation, Plaintiff must allege that he (1) spoke on a matter of public concern;

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(2) as a private citizen rather than a public employee; and (3) his protected speech was a substantial

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or motivating factor in the adverse employment action. Eng v. Cooley, 552 F.3d 1062, 1070 (9th

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Cir. 2009). Defendants argue that Plaintiff’s speech did not involve a matter of public concern.

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“Speech involves a matter of public concern when it can fairly be considered to relate to ‘any

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matter of political, social, or other concern to the community.’” Johnson v. Multnomah County, 48

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F.3d 420, 422 (9th Cir. 1995) (quoting Connick, 461 U.S. at 146). To determine whether

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Plaintiff’s speech addresses a matter of public concern, the court must examine “the content, form,

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and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48.

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The speech alleged in the FAC includes Plaintiffs’ refusal to accept punishment (FAC ¶

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24), his complaints to Medina and Solano (FAC ¶ 27), his telling Medina and Solano that they

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were making illegal threats and blackmailing him (FAC ¶ 25), his internal complaint regarding a

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female officer not adequately backing-up other officers (FAC ¶ 30), his telling the truth during an

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Internal Affairs investigation regarding another officer (FAC ¶ 36), his campaign promises when

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running for union president (FAC ¶ 28), his refusal to support a political candidate in his capacity

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as union president (FAC ¶ 32), the advisements he gave as union president (FAC ¶ 34), and his

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speaking out on “corruption and misconduct” in the City police department (FAC ¶ 58). The

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majority of these allegations are devoid of factual detail. Moreover, Plaintiff fails to identify what

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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elements, if any, of this speech raise a matter of public concern. This lack of clarity renders the

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First and Second causes of action subject to dismissal for failure to satisfy Rule 8(a).

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Even if Plaintiff had alleged that all of his speech was a matter of public concern, these
claims would still likely be dismissed. On their face, these assertions appear to relate more to

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“individual personnel disputes and grievances” than they do to a matter of a public concern. In

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Connick v. Myers, the Supreme Court found that an assistant district attorney’s speech—

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confronting her supervisors regarding the office’s transfer policy and circulating a questionnaire

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soliciting the input of her coworkers on the transfer policy, office morale, the need for a grievance

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United States District Court
For the Northern District of California

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committee, the level of confidence in supervisors, and whether employees felt pressured to work in

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political campaigns—reflected one employee’s dissatisfaction but did not constitute speech on a

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matter of public concern. 461 U.S. at 141, 147-48. The Court specifically contrasted the

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employee’s speech to speech that did touch on public concern, which included a teacher who had

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testified before a legislative committee, a teacher who had relayed an internal memorandum to a

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radio station that implicated the relationship between teacher appearance and public support for

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school bonds, and an employee’s statements concerning a school district’s allegedly racially

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discriminatory policies. Connick, 461 U.S. at 145-46. Here, Plaintiff’s alleged speech more

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closely resembles the speech rejected in Connick than it does speech held to be a matter of public

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concern. His allegations do not suggest that Plaintiff spoke out as a private citizen on matters of

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interest to the broader community but rather that he lodged complaints and otherwise acted in

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relation to his own employment status, position as the union president, and relationship with senior

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management. Plaintiff makes no allegations linking any of his union activities to a matter of public

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concern. Similarly, his vague assertions that he “spoke out on a matter of public interest, to wit:

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corruption and misconduct in the CITY police department” does not save his claims. FAC ¶ 58.

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Plaintiff must identify what corruption and misconduct he spoke out against, what he said, to

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whom, and in what forum. Therefore, the Court DISMISSES with leave to amend Plaintiff’s First

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and Second Causes of Action.

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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2. Qualified Immunity
The doctrine of qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional

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rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

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(1982). The Supreme Court has repeatedly “stressed the importance of resolving immunity

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questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991)

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(per curiam). When, as here, a plaintiff alleges claims against public officials that require proof of

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wrongful motive, it is incumbent on the court to “exercise its discretion so that officials are not

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United States District Court
For the Northern District of California

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subjected to unnecessary and burdensome discovery or trial proceedings.” Crawford-El v. Britton,

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523 U.S. 574, 585, 597-98 (1998). In considering qualified immunity, the court must consider (1)

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whether a constitutional violation has occurred, and (2) whether a reasonable officer would have

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known that he or she was violating the plaintiff’s constitutional rights. While this two-step process

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may be beneficial, its sequence is not mandatory. See Pearson v. Callahan, 555 U.S. 223, 236

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(2009). Particularly, courts have recognized that the two-step inquiry “is an uncomfortable

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exercise where ... the answer [to] whether there was a violation may depend on a kaleidoscope of

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facts not yet fully developed,” e.g. in the pleading stage. Pearson, 555 U.S. 239 (citations omitted).

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Because Plaintiff here has failed to satisfy Rule 8(a), the court does not have sufficient

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information to make a decision regarding qualified immunity at this time. Therefore, the court

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GRANTS Defendants’ Motion for a More Definite Statement as to the First and Second causes of

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action. In his amended pleading, Plaintiff must “‘put forward specific, nonconclusory factual

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allegations’” that establish these two constitutional claims, and particularly, “that establish

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improper motive causing cognizable injury” on the part of each defendant. Crawford-El, 523 U.S.

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at 598 (citing Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J. concurring).

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iii. Plaintiff’s Fourth Cause of Action for Violation of Procedural and
Substantive Due Process
Plaintiff’s Fourth cause of action alleges that Plaintiff was denied substantive and

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procedural due process “in that the hearing provided [appealing Plaintiff’s termination] was neither

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

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timely nor meaningful.” FAC ¶ 73. “In order for a person acting under color of state law to be

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liable under section 1983 there must be a showing of personal participation in the alleged rights

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deprivation.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The court cannot consider §

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1983 liability against a group; rather, Plaintiff must establish the “integral participation” of each of

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the Defendants in the alleged constitutional violation. Id. at 935 (citing Chuman v. Wright, 76 F.3d

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292, 294 (9th Cir. 1996). Plaintiff’s complaint is devoid of any individualized allegations against

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Defendants Medina, Solano, or BEME. Therefore, the Fourth Cause of Action is DISMISSED as

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to these three Defendants with leave to amend.

United States District Court
For the Northern District of California

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iv. Plaintiff’s Fifth Cause of Action for Civil Conspiracy

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Plaintiff’s Fifth cause of action alleges that Defendants conspired to terminate Plaintiff in

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retaliation for his exercising his constitutional rights. Defendants, citing Eleventh Circuit law,

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argue that this claim must be dismissed without leave to amend because an employer cannot

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conspire with its own employees or agents. The intracorporate conspiracy doctrine is a principal in

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antitrust law, “which holds that a conspiracy requires ‘an agreement among two or more persons or

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distinct business entities.’” U.S. v. Hughes Aircraft Co., Inc., 20 F.3d 974, 979 (9th Cir. 1994)

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(citations omitted). While several circuits have extended this rule to civil rights cases, the Ninth

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Circuit has expressly reserved the issue. See Portman v. County of Santa Clara, 995 F.2d 898, 910

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(9th Cir. 1993) (listing cases). The court declines to extend the scope of that doctrine here.

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Defendants also contend, and Plaintiff concedes, that this cause of action has not been

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adequately pled. The court agrees, and DISMISSES the Fifth Cause of Action with leave to

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amend.

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c. POBR Claim
Defendants Medina, Solano, and the City argue that Plaintiff’s Sixth cause of action for

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violation of the POBR must be dismissed without leave to amend because the statute of limitations

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has run. In order to bring suit for damages against a public entity in California for certain causes of

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action, a plaintiff must first present a claim to the public entity and receive a decision by the entity.

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If the entity rejects the claim, the plaintiff must file any court action on the claim within six months

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.

from the date of the rejection notice. Cal. Gov. Code § 945.6. Plaintiff filed a tort claim alleging

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violations of the POBR on May 2, 2011 (Def. Request for Judicial Notice (“RJN”) Ex. 2, Dkt. No.

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16-1) 2, which the City rejected (Def. RJN Ex. 2), informing Plaintiff’s attorney of the rejection by

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letter dated May 19, 2011 (Def. RJN Ex. 3). That rejection letter contained a warning notifying

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Plaintiff that he had six months from the date of the notice to file an action on his POBR claim.

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Plaintiff filed the current action on May 4, 2012—nearly one year after he received the rejection

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letter and clearly outside of the statutory period. In his Opposition, Plaintiff does not acknowledge

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this claim or its rejection, but rather directs the court’s attention to a second claim he filed, which

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United States District Court
For the Northern District of California

1

was rejected by letter dated April 12, 2012. This additional tort claim is of no moment because

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Plaintiff’s original tort claim covered the entirety of the POBR violations he asserts in this lawsuit.

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Therefore, he was bound by the original rejection letter, which required him to file a lawsuit within

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six months of May 19, 2011. Because Plaintiff failed to file a lawsuit on the POBR claim within

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the prescribed time period, that claim is now DISMISSED without leave to amend.

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IV.

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CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motions to Dismiss. Plaintiff’s

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First, Second, Third, and Fifth causes of action as to BEMA are DISMISSED without leave to

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amend. The Fourth cause of action as to BEMA, Solano, and Medina is DISMISSED with leave to

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amend, and the First, Second, and Fifth causes of action are DISMISSED with leave to amend as to

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the City, Palacios, Solano, and Medina. Plaintiff’s Sixth cause of action is DISMISSED without

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leave to amend as to all alleged defendants. Additionally, Defendants the City, Solano, Medina,

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and Palacios’ Motion for a More Definite Statement is GRANTED as to the First and Second

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causes of action.

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Any amended complaint must be filed within thirty days of the date of this Order. Plaintiff

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is advised that he may not add new claims or parties without first obtaining Defendants’ consent or

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leave of court pursuant to Federal Rule of Civil Procedure 15. Plaintiff is further advised that

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2

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28

Pursuant to Federal Rule of Civil Procedure 201, the court GRANTS Defendants’ Request for Judicial Notice
(Docket Item Number 16-1) as to Exhibits 2-4 and GRANTS Plaintiff’s Request for Judicial Notice (Docket Item
Number 29).

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Case No.: 5:12-CV-02271-EJD
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; GRANTING IN PART
DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT.