Bilema et al v. Bostic et al

Filing 50

ORDER Granting in Part and Denying in Part Defendants' 42 Motion to Dismiss Plaintiffs' SAC; and Granting Defendants' 43 Motion to Strike. Signed by Judge Michael M. Anello on 5/25/2017. (ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 18 SOUTHERN DISTRICT OF CALIFORNIA FRANK URIARTE, RUDY ALARCON, LUIS CASILLAS, STEVEN GARCIA, GERMAN DURAN, GABRIEL RODRIGUEZ, ISAIAS NAVARRO, and STEPHEN FRAZIER, v. Case No.: 15cv1606-MMA (PCL) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SAC; AND Plaintiffs, [Doc. No. 42] GRANTING DEFENDANTS’ MOTION TO STRIKE MICHAEL BOSTIC, CITY OF CALEXICO, RICHARD WARNE, and GONZALO C. GERARDO, [Doc. No. 43] Defendants. 19 20 21 Defendants move to dismiss Plaintiffs’ Second Amended Complaint (SAC) 22 pursuant to Federal Rule of Civil Procedure 12(b)(1), and move to strike Plaintiffs’ state 23 law claims pursuant to California Code of Civil Procedure § 425.16. See Doc. Nos. 42, 24 43. The Court found the matters suitable for determination on the papers and without 25 oral argument pursuant to Civil Local Rule 7.1(d)(1). For the following reasons, the 26 Court GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss and 27 GRANTS Defendants’ motion to strike. Doc. Nos. 42, 43. 28 -1- 15cv1606-MMA (PCL) PROCEDURAL BACKGROUND1 1 2 On July 20, 2015, Plaintiffs Joseph Bielma, Frank Uriarte, Rudy Alarcon, Luis 3 Casillas, Steven Garcia, German Duran, Gabriel Rodriguez, Isaias Navarro, and Stephen 4 Frazier filed this action against Defendants Michael Bostic, City of Calexico, Richard 5 Warne, Gonzalo C. Gerardo, and Maritza Hurtado alleging numerous causes of action. 6 Defendants moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 7 12(b)(1) and 12(b)(6), and moved to strike the state law claims pursuant to California 8 Code of Civil Procedure § 425.16. Doc. Nos. 7, 8, 9. The Court granted Defendants’ 9 motion to dismiss, dismissing some claims with prejudice and granting Plaintiffs leave to 10 amend those claims dismissed without prejudice. Doc. No. 20. The Court denied 11 Defendants’ motion to strike without prejudice. Doc. No. 20. 12 Plaintiffs then filed the First Amended Complaint (FAC), and Defendants filed a 13 motion to dismiss and a motion to strike the state law claims. Doc. No. 23. The Court 14 granted in part and denied in part Defendants’ motion to dismiss. Doc. No. 35. 15 Specifically, the Court dismissed Plaintiff Bielma’s First Amendment retaliation claims 16 as to all Defendants with prejudice and without leave to amend, and dismissed all First 17 Amendment retaliation claims against Defendant Hurtado with prejudice and without 18 leave to amend. The Court also dismissed with prejudice and without leave to amend 19 those claims alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 207 et 20 seq., and violations of 42 U.S.C. § 1985(1) and (2). 21 The FAC also alleged state law claims for violations of the Public Safety Officers 22 Procedural Bill of Rights Act (“POBRA”) pursuant to California Government Code §§ 23 3300 et seq., violations of the Meyers-Milias-Brown Act (“MMBA”) pursuant to 24 California Government Code sections 3502 and 3506, and tort claims for defamation and 25 false light. The Court dismissed those claims without prejudice and with leave to amend. 26 27 28                                                                   1 For the purposes of this Order, the Court need not reiterate the full factual background. See Doc. Nos. 20, 35. -2- 15cv1606-MMA (PCL) 1 In particular, the Court found the FAC failed to allege satisfaction of the claims 2 presentation requirements of the California Government Claims Act, California 3 Government Code section 945.4. The Court also denied Defendants’ motion to strike the 4 FAC’s state law claims without prejudice. Doc. No. 35. 5 Subsequently, Plaintiffs Frank Uriarte, Rudy Alarcon, Luis Casillas, Steven 6 Garcia, German Duran, Gabriel Rodriguez, Isaias Navarro, and Stephen Frazier filed the 7 SAC, alleging claims against Defendants Michael Bostic, Richard Warne, Gonzalo C. 8 Gerardo and the City of Calexico.2 Doc. No. 39. The SAC alleges First Amendment 9 retaliation pursuant to 42 U.S.C. § 1983, violations of the MMBA pursuant to California 10 Government Code sections 3502 and 3506,3 defamation, and false light. Defendants 11 move to dismiss the SAC pursuant to Rule 12(b)(6), and move to strike the state law 12 claims pursuant to California Code of Civil Procedure § 425.16. Doc. Nos. 42, 43. 13 14 LEGAL STANDARD A. 15 Rule 12(b)(6) A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro 16 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain 17 statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 18 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is 19 plausible on its face.” Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 20 570 (2007). The plausibility standard thus demands more than “a formulaic recitation of 21 the elements of a cause of action,” or “naked assertions devoid of further factual 22 enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). 23 Instead, the complaint “must contain allegations of underlying facts sufficient to give fair 24 25                                                                   26 2 27 28 In other words, the SAC omits Joseph Bielma as a plaintiff and Maritza Hurtado as a defendant. Despite that Plaintiffs list claims for violation of the POBRA in the caption of the SAC and in the heading for the second cause of action, Plaintiffs have omitted all factual allegations in support of such claims. Accordingly, the Court infers that Plaintiffs intend to forego such claims. Regardless, dismissal of any claims under the POBRA would be appropriate due to the lack of sufficient factual support. 3 -3- 15cv1606-MMA (PCL) 1 notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 2 F.3d 1202, 1216 (9th Cir. 2011). 3 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 4 of all factual allegations and must construe them in the light most favorable to the 5 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 6 The court need not take legal conclusions as true merely because they are cast in the form 7 of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). 8 Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to 9 defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 10 In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not 11 look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 12 908 (9th Cir. 2003). “A court may, however, consider certain materials—documents 13 attached to the complaint, documents incorporated by reference in the complaint, or 14 matters of judicial notice—without converting the motion to dismiss into a motion for 15 summary judgment.” Id.; see also Fed. R. Evid. 201; see also Lee v. City of Los Angeles, 16 250 F.3d 668, 688 (9th Cir. 2001) overruled on other grounds by Galbraith v. Cnty. Of 17 Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir. 2002). 18 Where dismissal is appropriate, a court should grant leave to amend unless the 19 plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of 20 Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). 21 B. Motion to Strike California’s anti-SLAPP4 statute provides a mechanism for striking “lawsuits 22 23 brought primarily to chill the valid exercise of the constitutional rights of freedom of 24 speech and petition for the redress of grievances.” See Cal. Code. Civ. P. § 425.16. 25 “Motions to strike a state law claim under California’s anti-SLAPP statute may be 26                                                                   27 4 28 “SLAPP stands for strategic lawsuits against public participation.” Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 1573 (2005). -4- 15cv1606-MMA (PCL) 1 brought in federal court,” whether the court is sitting in diversity or exercising federal 2 question jurisdiction.5 See Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 3 2003) (citing United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 4 963, 970–73 (9th Cir. 1999)). However, California’s anti-SLAPP statute does not apply 5 to federal law causes of action. See Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th 6 Cir. 2009). 7 “Resolution of an anti-SLAPP motion requires the court to engage in a two-step 8 process.” Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728, 733 (2003) (internal 9 citations and quotations omitted). First, the defendant must make a “threshold showing 10 that the challenged cause of action is one arising from protected activity.” Id. Second, 11 to avoid dismissal, the plaintiff must demonstrate a probability of prevailing on the claim. 12 Id. 13 14 DISCUSSION A. 15 Requests for Judicial Notice Generally, a district court’s review of a 12(b)(6) motion to dismiss is “limited to 16 the complaint.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) overruled 17 on other grounds by Galbraith v. Cnty. Of Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir. 18 2002) (quoting Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)). 19 However, without converting a motion to dismiss into a motion for summary judgment, a 20 court may take judicial notice of matters submitted as part of a complaint, or other 21 matters as to which authenticity is not contested and where the plaintiff’s complaint relies 22 on them. Lee, 250 F.3d at 688. A court may also take judicial notice of matters of 23 public record. Id. at 688–89 (citing Mack v. South Bay Beer Distrib., 798 F.2d 1279, 24 1282 (9th Cir. 1986) (internal quotations omitted). 25 26 27 28                                                                   5 Recently, this has been called into question, though it remains law. See Makaeff v. Trump Univ., LLC, 715 F.3d 254, 275 (9th Cir. 2013) (Kozinski, J., concurring) (“Newsham is wrong and should be reconsidered.”); Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1182–83 (9th Cir. 2013) (declining to rehear issue en banc). -5- 15cv1606-MMA (PCL) 1 Defendants request judicial notice of the following: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1. Copies of Calexico Municipal Code Chapters 2.02, 2.04, 2.10, 2.20, and 2.56; 2. Copies of Calexico Police Department Policy Manual, Chapter 1, sections 200, 300, 340, 344, 346, 1020, 1038, and Organizational Chart; 3. Copies of a Memorandum of Understanding between the City of Calexico and the CPOA and a Memorandum regarding “Tentative Agreement 2012-13 MOU”; 4. Copies of City of Calexico Personnel Commission Rules and Regulations 10.05–10.10 5. The administrative appeals for Plaintiffs Duran, Rodriguez, Alarcon, Frazier, Garcia, Casillas, and Uriarte. 6. The fact that the administrative appeals of German Duran and Frank Uriarte have been denied and that in the course of those administrative proceedings, the parties were represented by counsel and were able to subpoena, call, examine, cross-examine, and impeach witnesses, introduce exhibits, and submit briefs to impartial decision makers, who made factual findings and ultimately issued written decisions stating that the City had cause to terminate Duran and Uriarte, and that a written transcript of each proceeding was prepared. 7. The written decisions in the administrative appeals of Frank Uriarte and German Duran. 8. Government Claim for Damages submitted by the Calexico Police Officers’ Association, Rudy Alarcon, Luis Casillas, Frank Uriarte, Steven Garcia, German Duran, Gabriel Rodriguez, and Isaias Navarro against the City of Calexico, Betty Kelepecz, and Norm Traub & Associates, which was received by the City on September 10, 2014. 9. Government Claim for Damages submitted by German Duran against the City of Calexico, John T. Quinn, Richard Warne, Michael Bostic, Maritza Hurtado, and John M. Moreno, which was received by the City on June 22, 2015. 10. Government Claim for Damages submitted by Francisco Uriarte against the City of Calexico, John T. Quinn, Richard Warne, Michael Bostic, 28 -6- 15cv1606-MMA (PCL) Maritza Hurtado, and John M. Moreno, which was received by the City on July 6, 2015. 11. Government Claim for Damages submitted by Luis Casillas against the City of Calexico, John T. Quinn, Richard Warne, Michael Bostic, Maritza Hurtado, and John M. Moreno, which was received by the City on August 13, 2015. 12. Government Claim for Damages submitted by the Calexico Police Officers’ Association, Rudy Alarcon, Luis Casillas, Frank Uriarte, Steven Garcia, German Duran, Gabriel Rodriguez, and Isaias Navarro against the City of Calexico, Richard Warne, and Michael Bostic, which is dated December 23, 2014. 13. The fact that Exhibits 2–6 to the Declaration of Gabriela Garcia (Doc. Nos. 7-10, 7-11) (i.e., the government claims referenced in requests for judicial notice 8–12) are the only claims submitted to the City of Calexico before this lawsuit was filed by any of the following individuals: Rudy Alarcon, Luis Casillas, Frank Uriarte, Steven Garcia, German Duran, Gabriel Rodriguez, Isaias Navarro, and Stephen Frazier. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 See Doc. No. 42-2. Plaintiffs do not oppose any of Defendants’ requests for judicial 15 notice. 16 As an initial matter, the Court has previously taken judicial notice of the 17 documents listed in requests 1–4 and 8–12. See Doc. Nos. 20, 35. Accordingly, the 18 Court DENIES those requests as moot. 19 Regarding Defendants’ request that the Court take judicial notice of the 20 “administrative appeals”6 for Plaintiffs Duran, Rodriguez, Alarcon, Frazier, Garcia, 21 Casillas, and Uriarte, the Court GRANTS the request IN PART. Because the Court 22 resolves all issues raised in Defendants’ motion to dismiss the SAC without reference to 23 the administrative appeals of Plaintiffs Rodriguez, Alarcon, Frazier, Garcia, and Casillas, 24 the Court declines to take judicial notice of those “appeals.” Further, the Court declines 25 to judicially notice an “administrative appeal” for Plaintiff Uriarte because it is unable to 26                                                                   27 6 28 While Defendants refer to the proffered documents as “administrative appeals,” the documents are letters from Plaintiffs’ counsel to Defendant Bostic and/or Defendant Warne and email correspondence amongst counsel referring to an appeal by Plaintiff Uriarte. See Doc. Nos. 7-6, 7-9. -7- 15cv1606-MMA (PCL) 1 locate anything in the record that can be construed as “an appeal.” Rather, based on the 2 email correspondence that Defendants cite to in their request, which refers to Plaintiff 3 Uriarte’s then-pending appeal, the Court GRANTS judicial notice only of the fact that 4 Plaintiff initiated some sort of appeal prior to the date of the correspondence, but declines 5 to take judicial notice of any other facts stated within the correspondence. See Doc. No. 6 7-6. The Court also GRANTS judicial notice of the existence of Plaintiffs’ counsel’s 7 letter to Defendant Bostic seeking to appeal Plaintiff Duran’s termination of employment. 8 See Doc. No. 7-9. Plaintiffs do not contest the authenticity of either the email 9 correspondence or the letter, and the existence of the appeals has some relevance to 10 Defendants’ arguments regarding res judicata. 11 Regarding request number 6, the Court declines to take judicial notice of the facts 12 asserted at the motion to dismiss stage. Further, the Court is able to resolve the issues 13 before it without reliance on those facts. 14 Regarding request number 7, the Court takes judicial notice of the existence of the 15 arbitrators’ decisions, but declines to take judicial notice of the legal effect of those 16 decisions or of the truth of any facts stated within those decisions. The Court is able to 17 resolve the issues before it without relying on the veracity of the facts stated in the 18 appeals. 19 Regarding request number 13, the Court declines to take judicial notice of the fact 20 “that Exhibits 2–6 to the Declaration of Gabriela Garcia . . . are the only claims submitted 21 to the City of Calexico before this lawsuit was filed by” Plaintiffs Alarcon, Casillas, 22 Uriarte, Garcia, Duran, Rodriguez, Navarro, and Frazier because the Court addresses all 23 issues raised in Defendants’ motion to dismiss without reference to or reliance on that 24 fact. “[J]udicial notice is inappropriate where the facts to be noticed are not relevant to 25 the disposition of the issues before the court.” Kuzmenko v. Lynch, 606 F. App’x 399 26 (9th Cir. 2015) (citing Ruiz v. City of Santa Maria, 160 F.3d 543, 548 n.13 (9th Cir. 27 1998)). 28 // -8- 15cv1606-MMA (PCL) 1 2 B. Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(6), Defendants move to dismiss Plaintiff Uriarte’s and 3 Plaintiff Duran’s First Amendment retaliation claims and their claims under the MMBA 4 because they are “precluded by the unsuccessful administrative appeals of their 5 termination.” See Doc. No. 42-1. Also, Defendants argue the MMBA claims are subject 6 to dismissal because there is no private right of action under the MMBA. Lastly, 7 Defendants move to dismiss all of the Plaintiffs’ claims for defamation and false light 8 because Defendant Bostic is immune from liability for his statements. 9 i. California Government Claims Act 10 As an initial matter, Defendants do not move to dismiss any claims in the SAC on 11 the grounds that they were not presented properly under the Government Claims Act, as 12 Defendants had with regard to the FAC. Further, as explained below, the Court grants 13 Defendants’ requests to dismiss and/or strike all state law claims. Accordingly, the Court 14 declines to sua sponte analyze claim presentation, and turns to Defendants’ proffered 15 grounds for dismissal. 16 ii. 17 Defendants argue the Court should dismiss Plaintiffs Uriarte and Duran’s section Claim Preclusion 18 1983 and MMBA claims based on the preclusive effect of the unfavorable decisions that 19 two arbitrators rendered in Plaintiffs’ respective administrative appeals. Specifically, 20 Defendants argue that claim preclusion applies, meaning Plaintiffs Uriarte and Duran are 21 barred from litigating any “termination-related claims.” See Doc. Nos. 42, 48 (clarifying 22 that Defendants rely exclusively on the doctrine of claim preclusion, and not issue 23 preclusion). Defendants state that “the only right of review available to Duran and 24 Uriarte” is the right to file a petition for a writ of mandate in California Superior Court, 25 pursuant to California Code of Civil Procedure section 1094.5. See Doc. No. 42-1. 26 Plaintiffs argue their claims are not precluded because the arbitrators did not “actually 27 decide” whether Plaintiffs “were retaliated against due to the exercise of the First 28 Amendment rights.” See Doc. No. 44. Plaintiffs contend the arbitrators had “no -9- 15cv1606-MMA (PCL) 1 jurisdiction to make such a finding” because “the arbitrator[s] [are] limited purely to 2 determining whether or not the employee[s] committed the alleged policy violations or 3 not.” See Doc. No. 44. 4 Pursuant to 28 U.S.C. § 1738, federal courts must “give the same preclusive effect 5 to state court judgments as they would be given in the state in which they were rendered.” 6 See Miller v. Cty. of Santa Cruz, 39 F.3d 1030, 1032 (9th Cir. 1994). Although section 7 1738 does not contemplate unreviewed state administrative decisions, such decisions may 8 have preclusive effect in federal court as a matter of federal common law, so long as they 9 meet the fairness requirements described in United States v. Utah Construction & Mining 10 Company, 384 U.S. 394 (1966). See id.; see also Univ. of Tennessee v. Elliot, 478 U.S. 11 788, 794 (1986)). Under Utah Construction, it is fair to give preclusive effect to an 12 administrative decision if (1) “the administrative agency act[ed] in a judicial capacity;” 13 (2) “the agency resolv[ed] disputed issues of fact properly before it;” and (3) “the parties 14 ha[d] an adequate opportunity to litigate.” Id. 15 Once satisfied that an administrative proceeding is sufficiently judicial in character 16 pursuant to Utah Construction, federal courts turn to the state’s rules of preclusion to 17 define the preclusive effect of the administrative decision. See id.; White v. City of 18 Pasadena, 671 F.3d 918, 926 (9th Cir. 2012); Eaton v. Siemens, No. 2:07-CV-00315- 19 MCE-CKD, 2012 WL 1669680, at *6 (E.D. Cal. 2012), aff’d, 571 Fed. Appx. 620 (9th 20 Cir. 2014). There are two doctrines of preclusion: claim preclusion, which may also be 21 referred to as res judicata, and issue preclusion, which may also be referred to as 22 collateral estoppel. See White, 671 F.3d at 926; Fed’n of Hillside & Canyon Ass’ns v. 23 City of Los Angeles, 126 Cal. App. 4th 1180, 1202 (2004). Claim preclusion dictates that 24 “a final judgment forecloses successive litigation of the very same claim, whether or not 25 relitigation of the claim raises the same issues as the earlier suit.” White, 671 F.3d at 926 26 (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)). In other words, “[r]es 27 judicata bars the litigation not only of issues that were actually litigated but also issues 28 that could have been litigated.” See Fed’n of Hillside & Canyon Ass’ns, 126 Cal. App. -10- 15cv1606-MMA (PCL) 1 4th at 1202 (emphasis added). Under California law, two proceedings address the same 2 claim if they arise out of the same “primary right,” which is “the right to be free from a 3 particular injury, regardless of the legal theory on which liability for the injury is based.” 4 Id. In addition to identity of claims, in order for res judicata to apply, “the decision in the 5 prior proceeding [must be] final and on the merits” and “the parties in the present 6 proceeding or parties in privity with them were parties to the prior proceeding.” Id.; see 7 Cell Therapeutics, Inc. v. Lash Grp. Inc., 586 F.3d 1204, 1212 (9th Cir. 2010). 8 Here, in support of their arguments, Defendants request judicial notice of the 9 arbitrators’ written decisions in Plaintiffs Uriarte and Duran’s administrative appeals. As 10 stated above, the Court takes judicial notice of the existence of the written decisions, but 11 not the truth of the facts stated within. While these decisions may ultimately have some 12 preclusive effect on the pending claims, Defendants have not satisfied their burden in 13 establishing the requirements of res judicata at this point in the litigation. See Patel v. 14 Crown Diamonds, Inc., 247 Cal. App. 4th 29, 40 (2016) (stating that the party asserting 15 collateral estoppel or res judicata bears the burden of establishing their application); Fed. 16 Home Loan Bank of San Francisco v. Countrywide Fin. Corp., 214 Cal. App. 4th 1520, 17 1527 (2013) (same). In particular, the Court cannot determine, based on the facts before 18 it, whether the arbitrators’ decisions are final for the purposes of res judicata. Under 19 California law, a decision is not final for res judicata purposes where it is “still open to 20 direct attack by appeal or otherwise.” See Nat’l Union Fire Ins. Co. v. Stites Prof. Law 21 Corp., 235 Cal. App. 3d 1718, 1726 (Ct. App. 1991), modified (Nov. 20, 1991); Long 22 Beach Unified Sch. Dist. v. State of California, 225 Cal. App. 3d 155, 168–69 (1990), 23 modified (Nov. 15, 1990). In other words, a decision is not final if the time for filing an 24 appeal or petitioning for a writ of mandate have not yet expired, or if either an appeal or a 25 petition for a writ of mandate have been filed and are currently pending. See Long Beach 26 Unified Sch. Dist., 225 Cal. App. 3d at 169; San Remo Hotel v. City & Cty. of San 27 Francisco, 145 F.3d 1095, 1103 (9th Cir. 1998). Defendants argue Plaintiffs may seek 28 direct review by filing writs of mandate pursuant to California Civil Code section 1094.5, -11- 15cv1606-MMA (PCL) 1 but Defendants do not argue—let alone establish—that Plaintiffs did not do so, or that the 2 time for doing so has expired. Accordingly, Defendants have not established that the 3 decisions are final. 4 Moreover, the record is either unclear or silent regarding other pertinent facts. For 5 example, it is unclear what authority provided for and governed the administrative 6 appeals. In support of their motion to dismiss, Defendants request judicial notice of 7 various documents, such as several sections of the Calexico Code of Ordinances, several 8 policy sections of the Calexico Police Department Policy Manual, Memoranda of 9 Understanding (“MOU”) between the City of Calexico and the Calexico Police Officers’ 10 Association (“CPOA”), and Personnel Commission Rules and Regulation sections. 11 However, Defendants do not explain what, if any, of the above authority provided for and 12 governed Plaintiffs’ Duran and Uriarte’s arbitration proceedings, and it is not readily 13 apparent from the documents presented. In fact, those documents, in combination with 14 the arbitrators’ written decisions, compound the confusion surrounding the appeals. 15 To illustrate, Calexico Code of Ordinances, chapter 2.20 establishes a “personnel 16 commission” consisting of five members, and states that “it shall be the duty of the 17 personnel commission to hear appeals of city personnel regarding discipline, demotion or 18 dismissal.” See Doc. No. 7-5, Exh. E. The copy of the Code sections that Defendants 19 produce is dated September 3, 2015. Yet, Plaintiffs Duran and Uriarte did not appeal to a 20 “personnel commission.” Rather, they proceeded before individual arbitrators. Further, 21 the MOUs that Defendants submit do not appear relevant because they expired well 22 before Plaintiffs’ administrative appeals.7 See Doc. No. 7-9 (including copies of 23 agreements up to June 30, 2012). Also, the validity and effect of the memorandum 24 regarding a “tentative agreement” is unclear. See Doc. No. 7-9. The memorandum, 25 26 27 28                                                                   7 It appears that Plaintiff Duran’s attorney notified Defendant Bostic of Duran’s intent to appeal his termination of employment on January 23, 2015. See Doc. No. 7-9. The Court is unaware of similar communication on behalf of Plaintiff Uriarte, but based on the e-mail exchange between counsel that Plaintiff Uriarte appealed his termination of employment prior to March 12, 2015. See Doc. No. 7-6. -12- 15cv1606-MMA (PCL) 1 dated June 28, 2012, states that the “[c]urrent 2011-2012 MOU will remain the same 2 except for” two modifications, including a modification stating that appeals “of discipline 3 that involve[] a loss of pay or a transfer for the purposes of punishment will be before an 4 Administrative Law Judge and not the Personnel Commission.” See Doc. No. 7-9. 5 Accordingly, this agreement, assuming it had force and effect, only modified the MOU 6 that expired in 2012. Further, it provided for appeal to an Administrative Law Judge, but 7 the record does not establish that the arbitrators that decided the appeals were 8 Administrative Law Judges pursuant to the Administrative Procedure Act or state law. 9 Similarly, even were the Court to take judicial notice of the facts stated within the 10 arbitrators’ written decisions, the decisions do not resolve the Court’s lingering questions. 11 In the decision pertaining to Plaintiff Uriarte’s appeal, the arbitrator notes that the 12 “Arbitration arises pursuant to City of Calexico’s (hereinafter “City”) Municipal Code 13 under which” the arbitrator was chosen, but does not provide a code section. See Doc. 14 No. 42-3. It further states that “[t]he City is also a party to a Memorandum of 15 Understanding (“MOU”) with the City’s Police Officers Association,” insinuating that 16 the arbitrator may have been acting pursuant to that agreement in some capacity. See 17 Doc. No. 42-3. The written decision pertaining to Plaintiff Duran’s appeal states “[t]his 18 proceeding . . . is pursuant to a memorandum of understanding (MOU) between the 19 Calexico Police Officers Association (POA) and the City of Calexico (City)” and “city 20 policies,” yet Defendants do not provide a copy of a MOU that would have been in effect 21 at that time nor delineate any relevant “city policies.” See Doc. No. 42-4. The arbitrator 22 also echoed the Court’s uncertainty by stating, in a footnote, that “[a]lthough a ‘tentative 23 agreement’ [signed in 2012] between the City of Calexico and Calexico Police Officers 24 Association specifies that appeals such as this are to be made to an ‘administrative law 25 judge,’ during this proceeding the parties have consistently referred to me as being an 26 arbitrator.” See Doc. No. 42-4. 27 28 Lastly—and based in large part on the fact that the Court cannot determine what rules or agreements governed the appeals—it is unclear what claims or defenses Plaintiffs -13- 15cv1606-MMA (PCL) 1 Duran and Uriarte could have litigated during those proceedings. Plaintiffs argue that the 2 arbitrators would not have been able to adjudicate whether the City retaliated against 3 them based on protected speech and conduct, but Plaintiffs do not explain why, and 4 Defendants do not explain what authority governed the proceedings. Without more 5 context regarding the parameters of the arbitration proceedings, the Court cannot resolve 6 this issue. See Taines v. Bear, Stearns & Co., 855 F.2d 862 (9th Cir. 1988) (“In the 7 arbitration context, [] whether a ground of recovery ‘could have been asserted’ [for 8 purposes of res judicata] depends on the scope of the parties’ arbitration agreement.”). 9 For the foregoing reasons, Defendants have not satisfied their burden to establish 10 the preclusive effect of the decisions rendered in Plaintiffs’ Uriarte and Duran’s 11 administrative appeals. The Court cannot make assumptions in order to fill the gaps in 12 the factual record. Accordingly, the Court DENIES Defendants’ motion to dismiss 13 Plaintiffs’ Uriarte and Duran’s section 1983 and MMBA claims on res judicata grounds 14 without prejudice to Defendants raising the issue at a later junction in the proceedings 15 such as in a motion for summary judgment. 16 iii. 17 “The MMBA has two stated purposes: (1) to promote full communication between Meyers-Milias-Brown Act Claims 18 public employers and employees, and (2) to improve personnel management and 19 employer-employee relations.” El Dorado Cty. Deputy Sheriff’s Ass’n v. Cty. of El 20 Dorado, 244 Cal. App. 4th 950, 956 (2016) (internal quotations omitted). Plaintiff 21 alleges claims arising under section 3502 and 3506 of the Act. Specifically, section 3502 22 states, “public employees shall have the right to form, join, and participate in the 23 activities of employee organizations of their own choosing for the purpose of 24 representation on all matters of employer-employee relations.” Cal. Gov. Code § 3502. 25 Government Code section 3506 states, “public agencies and employee organizations shall 26 not interfere with, intimidate, restrain, coerce or discriminate against public employees 27 because of their rights under Section 3502.” Cal. Gov. Code § 3506. 28 -14- 15cv1606-MMA (PCL) 1 Defendants argue all of Plaintiffs’ MMBA claims are subject to dismissal because 2 there is no private right of action under the MMBA. In addressing Defendants’ motion to 3 dismiss the FAC, the Court declined to address this argument because it found Plaintiffs 4 had not adequately pleaded compliance with the California Government Claims Act, and 5 accordingly, dismissed all of Plaintiffs’ state law claims without prejudice. Now, 6 Defendants raise the argument again.8 Specifically, Defendants argue that Plaintiffs must 7 show there is a private right of action to sue for damages under the MMBA because the 8 MMBA does not explicitly provide for such relief and the MMBA’s legislative history 9 does not reveal an intent to provide a private right of action. Plaintiffs counter that the 10 California Supreme Court acknowledged a private right to sue in Santa Clara County 11 Counsel Attorneys Association v. Woodside, 7 Cal. 4th 525 (1994), in which the Supreme 12 Court stated that “in order to create a right to sue under the MMBA, [the Legislature] 13 need not have included language concerning the right to sue within the act itself.” Id. at 14 539. However, Defendants are correct that Plaintiffs take this quote out of context. 15 Immediately following the above statement, the Supreme Court noted that the Legislature 16 “endow[ed] the public employers and employees with substantive rights and duties” 17 under the MMBA, and “allow[ed] employees to enforce those rights by means of 18 traditional mandamus, under Code of Civil Procedure section 1085.”9 Id. Section 1085 19 allows courts to issue writs to “inferior tribunal[s] . . . to compel the performance of an 20 act which the law specially enjoins.” Id. Accordingly, Santa Clara does not stand for the 21                                                                   22 8 23 24 25 26 27 28 Contrary to Plaintiffs’ contention, Defendants may raise this argument again now despite that Defendants raised it initially in their motion to dismiss the original Complaint. In the Court’s Order regarding Defendants’ motion to dismiss the Complaint, the Court dismissed the MMBA claims on other grounds—namely, a lack of factual support. Thus, the Court did not foreclose further argument on the issue of whether the MMBA created a private right of action in noting that it was unconvinced that dismissal was required on those grounds based on the briefing before it at that stage. 9 Now, depending on the type of employee, the California Public Employment Relations Board (“PERB”) has exclusive jurisdiction over violations of the MMBA. See Cal. Gov. Code § 3509; Coachella Valley Mosquito & Vector Control Dist. v. California Pub. Employment Relations Bd., 112 P.3d 623, 625 (2005). However, PERB does not have jurisdiction over peace officers such as Plaintiffs, presumably leaving them with only the traditional means of enforcement by mandamus—unless Plaintiffs can demonstrate otherwise. See Cal. Gov. Code § 3511; see id. at 625, n.1 (2005). -15- 15cv1606-MMA (PCL) 1 proposition that Plaintiffs have a private right to sue, let alone a right to sue for damages. 2 In the SAC, Plaintiffs only request damages as relief for their MMBA claims. See SAC 3 ¶¶ 77–78. Also, Plaintiffs’ citation to City of Hayward v. United Public Employees, 54 4 Cal. App. 3d 761, in which a city sued a union pursuant to the MMBA for declaratory 5 relief, is similarly unpersuasive for the proposition that Plaintiffs may sue for damages. 6 See also Coachella Valley, 112 P.3d at 630 (reiterating that “MMBA-created rights and 7 duties [are] enforceable by a traditional mandate action”). 8 9 Defendants are correct that “when neither the language nor the history of a statute indicates an intent to create a new private right to sue, a party contending for judicial 10 recognition of such a right bears a heavy, perhaps insurmountable, burden of persuasion.” 11 See Crusader Ins. Co. v. Scottsdale Ins. Co., 54 Cal. App. 4th 121, 133 (1997); Lu v. 12 Hawaiian Gardens Casino, Inc., 50 Cal. 4th 592, 599 (2010). Accordingly, in the 13 absence of persuasive legal authority or argument, Plaintiffs have not satisfied their 14 burden of establishing that the MMBA provides a private right to sue for damages. Cf. 15 Aaron v. Aguirre, No. 06-CV-1451-H (POR), 2006 U.S. Dist. LEXIS 90384, at *53–55 16 (S.D. Cal. Dec. 13, 2006); Aaron v. Aguirre, No. 06-CV-1451-H (POR), 2007 WL 17 959083, at *7 (S.D. Cal. Mar. 8, 2007).10 Because Plaintiffs have had multiple 18 opportunities to amend these claims, and multiple opportunities to argue against their 19 dismissal, further amendment would be futile. Thus, the Court GRANTS Defendants’ 20 motion to dismiss all of Plaintiffs’ claims premised on violations of the MMBA, and 21 DISMISSES those claims with prejudice because allowing further amendment would be 22 futile. 23                                                                   24 10 25 26 27 28 In Aaron v. Aguirre, the plaintiffs alleged violations of the public policy embodied in the MMBA, as opposed to asserting violations of the MMBA itself as Plaintiffs have here. The Aaron court concluded that the plaintiffs’ had not demonstrated that there was “a right of action based upon a public policy violation” because they had not “directed the Court to any legal authority supporting a private right of action under the MMB Act.” See Aaron, 2006 U.S. Dist. LEXIS 90384, at *54–55. Thus, the case, while distinguishable, is persuasive for the propositions that the Plaintiffs’ carry the burden in establishing a private right of action exists, and that there is a lack of legal authority recognizing a private right of action under the MMBA. -16- 15cv1606-MMA (PCL) 1 iv. 2 Plaintiffs assert causes of action for defamation and false light against Defendant Defamation and False Light Claims 3 Bostic. Defendant Bostic moves to dismiss all of Plaintiffs’ causes of action for 4 defamation and false light on the grounds that he is immune from liability for his 5 statements pursuant to California Government Code sections 821.6 and 820.2, and 6 California Civil Code section 47(a). 7 a. 8 9 Government Code § 821.6 California Government Code section 821.6 states that “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative 10 proceeding within the scope of his employment, even if he acts maliciously and without 11 probable cause.” While multiple California Courts of Appeal have interpreted this statute 12 broadly to include immunity from liability for claims aside from malicious prosecution, 13 such as defamation, the California Supreme Court has interpreted section 821 as confined 14 to malicious prosecution claims. See Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 15 (9th Cir. 2016) (citing Sullivan v. County of Los Angeles, 527 P.2d 865, 871 (Cal. 1974)). 16 Accordingly, the Ninth Circuit has concluded that because federal courts are “bound by 17 the decision of the highest state court” when interpreting issues of state law, the 18 California Supreme Court’s decision in Sullivan controls despite contrary Courts of 19 Appeal opinions. See Garmon, 828 F.3d at 847 (quoting Hewitt v. Joyner, 940 F.2d 20 1561, 1565 (9th Cir. 1991)); see also Winger v. City of Garden Grove, --- Fed. Appx. ----, 21 2017 WL 1854694, at *2 (9th Cir. May 8, 2017) (declining to apply section 821.6 to a 22 negligence claim because it “applies only to malicious prosecution actions”). 23 Here, Plaintiffs do not allege malicious prosecution, but rather, defamation and 24 false light claims. Accordingly, Defendant Bostic does not enjoy immunity from those 25 claims under section 821.6, and the Court declines to dismiss Plaintiffs’ claims on such 26 grounds. 27 // 28 // -17- 15cv1606-MMA (PCL) 1 2 b. Government Code § 820.2 California Government Code section 820.2 provides for “discretionary act 3 immunity.” See Barner v. Leeds, 13 P.3d 704, 709 (Cal. 2000). Specifically, section 4 820.2 states that “[e]xcept as otherwise provided by statute, a public employee is not 5 liable for an injury resulting from his act or omission where the act or omission was the 6 result of the exercise of the discretion vested in him, whether or not such discretion be 7 abused.” See Cal. Gov. Code § 820.2. In determining whether an employee enjoys 8 immunity from liability for certain acts, courts consider “whether the acts or omissions of 9 the particular employee resulted from the exercise of discretion within the meaning of 10 section 820.2.” See Barner, 13 P.3d at 709. “The scope of immunity under § 820.2 is 11 somewhat limited, however,” as “not all acts requiring a public employee to choose 12 among alternatives entail the use of ‘discretion’ within the meaning of section 820.2.” 13 Ciampi v. City of Palo Alto, 790 F. Supp. 2d 1077, 1107 (N.D. Cal. 2011) (quoting 14 Barner, 13 P.3d at 709). Rather, immunity is reserved for “quasi-legislative policy- 15 making” decisions “as to which judicial interference would [] be ‘unseemly’” and 16 potentially chill “the coordinate body’s decision-making process.” See Barner, 13 P.3d 17 at 709 (citing Caldwell v. Montoya, 897 P.2d 1320, 1325–26 (Cal. 1995)). “[T]here is no 18 basis for immunizing lower level decisions that merely implement a basic policy already 19 formulated.” Id. 20 Accordingly, the California Supreme Court distinguishes between “ministerial” or 21 “operational” decisions, which receive no immunity, and “planning” decisions—those 22 “deliberate and considered policy decisions, in which a ‘conscious balancing of risks and 23 advantages took place’”—which do receive immunity. Caldwell, 897 P.2d at 1326 24 (quoting Johnson v. State of California, 447 P.2d 352, 361, n.8 (Cal. 1968)) (internal 25 alterations omitted). The party asserting immunity must actually “make a showing that 26 such a policy decision, consciously balancing risks and advantages, took place.” See 27 Johnson, 447 P.2d at 361, n.8. “The fact that an employee normally engages in 28 -18- 15cv1606-MMA (PCL) 1 ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a 2 considered decision.” Id. 3 Defendant Bostic does not argue that he made a policy decision in making the 4 allegedly tortious statements, or that he had consciously balanced the risks and 5 advantages prior to making those statements. Rather, without describing the relevant 6 facts of the instant case, Defendant states that “under the same circumstances,” the 7 Northern District of California and a California Court of Appeal applied section 820.2 8 immunity to statements made to the press. See Doc. Nos. 42-1, 48 (citing Harmston v. 9 City and Cty. of San Francisco, No. C 07-01186 SI, 2007 WL 2814596 (N.D. Cal. Sept. 10 25, 2007) and Ingram v. Flippo, 74 Cal. App. 4th 1280, 1292 (1999)). Thus, Plaintiff is 11 correct that, regarding section 820.2 immunity, “Bostic does not make any argument at 12 all about how [section 820.2] appl[ies] to this case; rather he simply mentions immunity 13 with no analysis.” See Doc. No. 44. In Harmston and Ingram, the courts relied on the 14 particular facts of those cases. See Harmston, 2007 WL 2814596, at *6 (relying on “the 15 context in which [the defendant] made her decision”). Also, in Harmston, the court 16 concluded that it could not apply section 820.2 immunity to conduct giving rise to other 17 causes of action because “a nuanced examination” of the “nature of the particular action 18 at issue [and the] context of the decision-maker’s position” could not be made “on the 19 bare pleadings” before the court. Id. at *5 (declining to apply immunity despite that the 20 “chief of police undoubtedly exercises a great deal of discretion as a result of her 21 position”). The court stated it may be necessary to revisit the issue upon the filing of a 22 motion for summary judgment. Id. In fact, the Ninth Circuit has indicated that it may be 23 inappropriate for courts to find discretionary act immunity applies at the pleadings stage. 24 See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 640 (9th Cir. 2012); see 25 also United Motors Int’l, Inc. v. Hartwick, No. CV 17-00243 BRO (EX), 2017 WL 26 888304, at *9 (C.D. Cal. Mar. 6, 2017) (concluding that it could not find, “based merely 27 on the pleadings before it, that the Government Defendants [were] absolutely immune”). 28 -19- 15cv1606-MMA (PCL) 1 Further, in Ingram—the only other case that Defendant Bostic relies on—the 2 California Court of Appeal relied solely on section 821.6 in deciding that a district 3 attorney was immune from liability for certain statements. See Ingram, 74 Cal. App. 4th 4 at 1291–93. The Ingram court relied exclusively on cases analyzing the applicability of 5 section 821.6, and cited to section 820.2 only to state that “if section 821.6 applies, so 6 also does section 820.2.” See id. As the Court stated above, reliance on section 821.6 in 7 any actions aside from malicious prosecution actions is misplaced. 8 9 Even were the Court to look to the typical job duties of a police chief, the Court could not resolve the issue of discretionary act immunity because “an employee’s normal 10 job duties are not determinative.” See AE ex. rel Hernandez, 666 F.3d at 640 (citing 11 Johnson, 447 P.2d at 361, n.8). Rather, Defendant has the burden to demonstrate his 12 “specific policy decision” was made after “consciously balanc[ing] the decision’s risks 13 and benefits.” Id. Here, Defendant does not present any evidence or argument regarding 14 the context or nature of his decisions to make the allegedly tortious statements. Further, 15 the SAC does not satisfy Defendant’s burden. It only provides the allegedly tortious 16 statements and an allegation that Defendant made those statements at a “November 19, 17 2014 Press Conference.” See SAC, Doc. No. 39, ¶ 31. The Court is unaware, for 18 example, of who called the press conference, when they did so, for what purpose, or 19 whether Defendant Bostic was acting in his capacity as Chief of Police when he spoke at 20 the press conference. 21 For the foregoing reasons, Defendant has failed to demonstrate that he is entitled to 22 immunity pursuant to section 820.2, which the Court must construe narrowly. See AE ex. 23 rel Hernandez, 666 F.3d at 639–40 (stating that the California Supreme Court has 24 “instruct[ed] [courts] to construe the scope of the discretionary act immunity as narrowly 25 as possible to preserve the separation of powers”). 26 27 28 c. Civil Code § 47(a) Lastly, Defendant argues he is immune from liability pursuant to California Civil Code section 47(a). Section 47(a) states that a “publication or broadcast” is privileged if -20- 15cv1606-MMA (PCL) 1 made “in the proper discharge of an official duty.”11 See Cal. Civ. Code § 47. “The 2 California Supreme Court defines such statements as those made in the discharge of an 3 official duty that are related to a policy-making function.” McQuirk v. Donnelley, 189 4 F.3d 793, 801 (9th Cir. 1999) (citing Saroyan v. Burkett, 371 P.2d 293, 295–96 (1962)). 5 “This requirement that the statements at issue be related to the exercise of a policy- 6 making function is closely related to the inquiry into whether an official was acting at a 7 planning, as opposed to an operational, level under § 820.2.” Id.; see also Sanborn v. 8 Chronicle Publ’g Co., 556 P.2d 764 (1976); ECO Res., Inc. v. City of Rio Vista, No. 9 2:05CV2556-GEB-DAD, 2006 WL 947763, at *2–3 (E.D. Cal. Apr. 12, 2006) (“The 10 inquiries under both section 47(a) and 820.2 are closely related.”). “To be engaged in 11 exercise of his policy-making function the official must reach a basic policy decision, as 12 distinct from an operational decision, after balancing the risks and advantages.” McQuirk 13 v. Donnelley, 189 F.3d at 801 (quoting Neary v. Regents of the Univ. of Cal., 185 14 Cal.App.3d 1136 (1986)). It is the party asserting immunity that bears the burden of 15 establishing entitlement to immunity under section 47(a). ECO Res., Inc., 2006 WL 16 947763, at *3. 17 Based on the foregoing, the same deficiencies detailed above regarding section 18 820.2 immunity apply equally to immunity under section 47(a) in this case. Further, 19 Defendant’s citation to a few provisions of the Calexico Police Department Policy 20 manual does not suffice to establish his immunity under section 47(a). Specifically, 21 Defendant cites to a provision that states that the Chief of Police has the “ultimate 22 authority and responsibility for the release of information to the media.” See Doc. Nos. 23 7-8, 42. However, just because Defendant Bostic may have had the authority to speak 24 with the press as interim Chief of Police, it does not necessarily follow that Defendant 25 26 27 28                                                                   11 So-called official duty immunity has always been available to high-ranking state and federal officials, but may also be available to lower level state and local officials in some circumstances. See TutorSaliba Corp. v. Herrera, 136 Cal. App. 4th 604, 614 (2006) (citing Royer v. Steinberg, 90 Cal. App. 3d 490 (1979)). -21- 15cv1606-MMA (PCL) 1 “was exercising his policy-making function and was acting within the scope of his 2 official duties” in deciding to speak at the November 2014 press conference or in 3 deciding what to say. See ECO Res., Inc., 2006 WL 947763, at *3 (quoting Neary, 185 4 Cal.App.3d at 1141); cf. Sanborn, 556 P.2d at 769.12 Lastly, the Court finds unpersuasive 5 Defendant’s argument that Plaintiffs have admitted that section 47(a) immunity applies 6 because the SAC alleges that “[i]n doing the things alleged herein . . . [Defendant Bostic] 7 acted . . . as an official policy-maker.” See Doc. Nos. 42, 48; see Neary, 185 Cal.App.3d 8 at 1141–42 (stating that—even in an affidavit filed in support of a motion for summary 9 judgment—a bare legal conclusion that one made a “policy decision” is insufficient to 10 establish immunity). Accordingly, and for the additional reasons listed above regarding 11 section 820.2, Defendant Bostic has not established that he is entitled to immunity under 12 section 47(a). 13 In sum, the Court is unpersuaded that Defendant Bostic is immune under 14 California Government Code sections 821.6 or 820.2, or California Civil Code section 15 47(a). As such, the Court DENIES Defendant Bostic’s motion to dismiss Plaintiffs’ 16 claims for defamation and false light on those grounds. 17 C. 18 Motion to Strike Pursuant to Section 425.16 Defendants move to strike Plaintiffs’ state law claims under California’s anti- 19 SLAPP statute, California Code of Civil Procedure § 425.16. See Doc. No. 29. Because 20 the Court dismisses Plaintiffs’ claims arising under the MMBA with prejudice, as 21 discussed above, the Court focuses only on Defendants’ request to strike Plaintiffs’ 22 defamation and false light claims against Defendant Bostic. 23                                                                   24 12 25 26 27 28 In Sanborn, the Supreme Court of California stated that it could not conclude that the county clerk’s decision to make allegedly defamatory statements to the press was a “basic policy decision made at the planning stage of [the] City’s operations,” despite that the clerk had the discretion to discuss the subject matter with the press. Id. The court stated that “[a] governmental officer’s discussions with the public or press regarding the functioning of his office would seem, instead, to fall within the category of those routine, ministerial duties incident to the normal operations of that office.” Id. Courts have since applied the reasoning in Sanborn, a decision based on section 820.2 immunity, in deciding whether section 47(a) immunity applies. See e.g., McQuirk, 189 F.3d at 801; Neary, 185 Cal.App.3d at 1141–42. -22- 15cv1606-MMA (PCL) 1 “Resolution of an anti-SLAPP motion requires the court to engage in a two-step 2 process.” Jarrow Formulas, Inc. v. LaMarche, 74 P.3d 737, 740 (Cal. 2003) (internal 3 citations and quotations omitted). First, the defendant must make a “threshold showing 4 that the challenged cause of action is one arising from protected activity.” Id. Second, 5 the plaintiff must demonstrate a reasonable probability of prevailing on the claim. Id.; 6 Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). If “the court 7 determines that the plaintiff has established that there is a probability that the plaintiff 8 will prevail on the claim,” the motion to strike must be denied. Cal. Civ. Proc. Code § 9 425.16(b)(1). 10 i. 11 The Court first inquires as to what activities form the basis for Plaintiffs’ causes of 12 action. See Graham-Sult v. Clainos, 756 F.3d 724, 735 (9th Cir. 2013). Here, Plaintiffs’ 13 defamation and false light claims are premised on multiple statements that Defendant 14 Bostic made at a press conference. Then, the Court determines whether those activities 15 are “protected” under the anti-SLAPP statute, meaning that they “arise from an act in 16 furtherance of the defendant’s rights of petition or free speech” “in connection with a 17 public issue.” See id. (quoting Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th 18 Cir. 2010)) (internal alteration omitted); Wallace v. McCubbin, 128 Cal. Rptr. 3d 205, 19 218 (Cal. Ct. App. 2011). “[T]he critical consideration is whether the cause of action is 20 based on the defendant’s protected free speech or petitioning activity.” Navellier v. 21 Sletten, 29 Cal.4th 82, 89 (Cal. 2002) (emphasis in original). To make this determination, 22 “a court considers the pleadings, and supporting and opposing affidavits stating the facts 23 upon which the liability or defense is based.” City of Cotati v. Cashman, 52 P.3d 695, 24 702 (Cal. 2002) (citing Cal. Civ. Proc. Code 425.16(b)) (internal quotations omitted). 25 The SAC alleges Defendant Bostic stated that some City Council members and Protected Activity 26 members of the CPOA have been using “city funds and city resources” to run an 27 “extortion racket.” SAC ¶ 31. He allegedly stated that some members of the prior 28 investigation unit of the police department spent thousands of dollars on surveillance -23- 15cv1606-MMA (PCL) 1 equipment, but when questioned, the investigations unit reported to Defendant Bostic that 2 they had no current investigations. Defendant purportedly stated that the CPOA and 3 Council Members were “using all this equipment to go around tracking, voice recording, 4 taking pictures, trying to get them in compromising positions; Like the Mafioso of New 5 York.” SAC ¶ 34. Also, the SAC alleges that Defendant Bostic stated that he was 6 attempting to clean up the mess caused by the former Chief and former staff, and that the 7 evidence of improper conduct is “in the hands of the FBI.” SAC ¶ 34. Plaintiffs allege 8 Defendant Bostic referred to the subjects of his statements as “[t]hese few thugs who 9 think they can be criminals wearing a badge.” SAC ¶ 34. 10 Defendant Bostic argues his statements are protected under the anti-SLAPP statute 11 because “[t]his lawsuit targets protected activity concerning issues of public interest (the 12 conduct of police officers),” such as “improper conduct, corruption, and mismanagement 13 within the Police Department.” See Doc. No. 43-1. The anti-SLAPP statute defines an 14 “act in furtherance of a person’s right of petition or free speech under the United States or 15 California Constitution in connection with a public issue” as including an “oral statement 16 . . . made in a place open to the public or a public forum in connection with an issue of 17 public interest” or “any other conduct in furtherance of the exercise of the constitutional 18 right of petition or the constitutional right of free speech in connection with a public issue 19 or an issue of public interest.” See Cal. Civ. Proc. Code § 425.16(e)(3), (4). Courts 20 “must construe ‘public issue or issue of public interest’ in section 425.16(e)(4) broadly in 21 light of the statute’s stated purpose to encourage participation in matters of public 22 importance or consequence.” Hilton v. Hallmark Cards, 599 F.3d 894, 906 (9th Cir. 23 2010). 24 Because Defendant Bostic’s alleged statements pertain to widespread corruption 25 and wrongdoing within a police department, Bostic has satisfied his burden under the first 26 prong by establishing that the activities forming the basis for Plaintiffs’ defamation and 27 false light causes of action are protected. See Fabbrini v. City of Dunsmuir, 544 F. Supp. 28 2d 1044, 1050–51 (E.D. Cal. 2008) (stating that news articles, newsletters, and press -24- 15cv1606-MMA (PCL) 1 releases constitute public forums and how public funds are used is an issue of public 2 interest); Grenier v. Taylor, 234 Cal. App. 4th 471, 483 (2015) (stating that allegedly 3 defamatory statements that a pastor misused donations and molested a child were of 4 interest to the community made up of the pastor’s church’s members). Defendant’s 5 alleged statements would undoubtedly interest residents of the community of Calexico. 6 Further, according to the SAC, the statements were linked to a controversy—namely, the 7 alleged overhaul of prior police department management and the department’s alleged 8 prior corruption and misuse of funds. See Grenier, 234 Cal. App. 4th at 482 (stating that 9 where conduct affects a community, “i.e., a limited but definable portion of the public,” 10 the protected activity must “be connected to a discussion, debate or controversy”). 11 Plaintiff’s citation to Garcetti v. Ceballos for the proposition that “public employees who 12 make statements pursuant to their job duties are not entitled to First Amendment 13 protection for those statements” is unpersuasive. See Doc. No. 45 (citing Garcetti v. 14 Ceballos, 547 U.S. 410 (2006)). In Garcetti, the Ninth Circuit did not address whether 15 public employees acting in their official capacities may be liable for defamation or false 16 light. Rather, the Ninth Circuit held that “[w]hen public employees make statements 17 pursuant to their official duties, they are not speaking as citizens for First Amendment 18 purposes, and the Constitution does not insulate their communications from employer 19 discipline.” See Garcetti, 547 U.S. 410 at 410 (emphasis added). Further, the California 20 Supreme Court has explicitly concluded that California’s anti-SLAPP statute’s protection 21 “extend[s] to statements by public officials or employees acting in their official 22 capacity.” Vargas v. City of Salinas, 205 P.3d 207 (Cal. 2009). Accordingly, Defendant 23 Bostic has established that the activities giving rise to Plaintiffs’ defamation and false 24 light claims are protected under California’s anti-SLAPP statute. 25 ii. 26 Because Defendant Bostic has sufficiently demonstrated the challenged causes of 27 action arose from Bostic’s protected activity, the burden shifts to Plaintiffs to establish a 28 reasonable probability of prevailing on their defamation and false light claims. “To Probability of Prevailing -25- 15cv1606-MMA (PCL) 1 determine whether the plaintiff has made this showing, the court considers the pleadings, 2 and supporting and opposing affidavits stating the facts upon which the liability or 3 defense is based.” Graham-Sult, 756 F.3d at 740-41 (citing Cal. Civ. Proc. Code § 4 425.16(b)(2)) (internal quotations omitted). “Under this standard, the claim should be 5 dismissed if the plaintiff presents an insufficient legal basis for it, or if, on the basis of the 6 facts shown by the plaintiff, no reasonable jury could find for the plaintiff.” Makaeff, 715 7 F.3d at 261 (citing Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir. 2001)) 8 (internal quotations omitted). Courts do not “weigh conflicting evidence to determine 9 whether it is more probable than not that plaintiff will prevail on the claim,” however, but 10 rather, courts “should grant the motion if, as a matter of law, the defendant’s evidence 11 supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for 12 the claim.” See Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1182–83 (9th Cir. 2013) 13 (quoting Vargas v. City of Salinas, 46 Cal.4th 1, 20, 92 Cal.Rptr.3d 286, 205 P.3d 207 14 (2009)). 15 Defamation and false light are governed in part by state law, and in part by 16 constitutional considerations. Under California law, defamation is “the intentional 17 publication of a statement of fact which is false, unprivileged, and has a natural tendency 18 to injure or which causes special damage.” Makaeff, 715 F.3d at 264 (citing Ringler 19 Assocs., Inc. v. Md. Cas. Co., 80 Cal. App. 4th 1165 (2000)) (internal quotations 20 omitted). Section 46 of the California Civil Code defines slander as: 21 22 23 24 25 26 27 28 [A] false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; [. . . ] 2. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with -26- 15cv1606-MMA (PCL) reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [. . .] 5. Which, by natural consequence, causes actual damage. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Civ. Code § 46. False light invasion of privacy requires a public disclosure, which places plaintiff in a false light in a manner highly offensive to a reasonable person. See Fellows v. National Enquirer, 721 P.2d 97, 99–100 (Cal. 1986). “When a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.” Eisenberg v. Alameda Newspapers, 8 Cal. Rptr. 2d 802, 823, n.13 (Cal. Ct. App. 1999) (internal citations omitted); see also Time, Inc. v. Hill, 385 U.S. 374 (1967); Lorenzo v. United States, 719 F. Supp. 2d 1208, 1213 (S.D. Cal. 2010) (“[I]n California, false light invasion of privacy is equivalent to libel.”). Under California law, a plaintiff must prove the defendant acted with at least negligence in order to recover actual damages. Khawar v. Globe Intern., Inc., 965 P.2d 696, 708 (Cal. 1998); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 347–48 (1974) (stating that each state determines the requisite fault where a plaintiff is a private figure). However, if a plaintiff is a public official or public figure, the Constitution requires the plaintiff to prove the defendant acted with actual malice—i.e., either with knowledge of the statement’s falsity or with reckless disregard for its truth—to recover actual damages. See Gertz, 418 U.S. at 342–43; New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). Here, as police officers, Plaintiffs were public officials under California law. “[T]he majority of courts have concluded that the public’s interest in the activities of peace officers at every level is such that, for purposes of defamation law, peace officers are public officials who must establish actual malice in order to prevail on a defamation claim.” See e.g., Comm’n on Peace Officer Standards and Training v. Superior Court, 165 P.3d 462, 474 (Cal. 2007) (compiling cases concluding that police officers are public -27- 15cv1606-MMA (PCL) 1 officials for purposes of defamation claims); Rattray v. City of Nat’l City, 51 F.3d 793, 2 800 (9th Cir. 1994). Thus, in order to avoid dismissal, Plaintiffs must demonstrate “a 3 reasonable probability of proving, by clear and convincing evidence,” that Defendant 4 Bostic made his allegedly tortious statements with actual malice. See Makaeff, 715 F.3d 5 at 271. 6 Plaintiffs do not argue that they need not prove actual malice in order to succeed 7 on their defamation and false light claims. Rather, in their opposition to Defendants’ 8 motion to strike, Plaintiffs argue the SAC is sufficient to show actual malice because 9 Defendant Bostic made “false statements . . . knowing them to be false,” which “satisfies 10 the pleading requirements.” See Doc. No. 45. However, the SAC is wholly insufficient 11 to demonstrate a reasonable probability that they will be able to prove by clear and 12 convincing evidence that Defendant Bostic acted with actual malice. In fact, the SAC 13 does not allege Defendant Bostic knew that any of his statements were false, except for 14 his statement that “no cases were being worked,” as the SAC alleges that Defendant 15 “[was] well aware of the case loads.” See SAC ¶ 35. This conclusory allegation, on its 16 own, is insufficient to show a reasonable probability of success, even on a defamation 17 claim premised only on that statement. Further, the SAC does not allege Defendant 18 Bostic had reckless disregard for the veracity of his statements, let alone state facts in 19 support of such a conclusion. Conclusory blanket allegations such as that, “[i]n doing the 20 things alleged herein, Defendants acted with malicious intent to violate Plaintiffs’ rights, 21 or at least in conscious, reckless, and callous disregard of Plaintiffs’ rights” are likewise 22 insufficient to show probability of proving actual malice. See SAC ¶ 84. Accordingly, 23 the SAC does not satisfy even basic pleading standards under Federal Rules of Civil 24 Procedure 8 and 12(b)(6). 25 Further, Plaintiffs produce no evidence pertinent to actual malice. Plaintiffs 26 contend that, “[a]lthough not necessary, declarations were previously provided by 27 Plaintiffs Casillas and Bielma addressing the probability of success on the merits, as to 28 their state law causes of action.” See Doc. No. 45. Presumably, Plaintiffs are referring to -28- 15cv1606-MMA (PCL) 1 declarations submitted with their opposition to Defendants’ motion to strike Plaintiffs’ 2 original Complaint. See Doc. Nos. 15-9, 15-10, 10-11. Plaintiff Casillas’s declaration 3 summarizes Defendant Bostic’s allegedly unlawful statements, and states that “[t]hese 4 assertions are false.” See Doc. No. 15-10. However, the declaration does not state that 5 Defendant Bostic knew that the statements were false or that he made them with reckless 6 disregard for the truth. Further, the declaration does not state any facts that would 7 support such conclusions. Also, Bielma’s declaration does not mention Defendant 8 Bostic’s alleged statements, so it is unclear how it is relevant to actual malice. 9 For the above reasons, Plaintiffs have failed to establish “a reasonable probability 10 of proving, by clear and convincing evidence,” that Defendant Bostic made his allegedly 11 tortious statements with actual malice. See Makaeff, 715 F.3d at 271. Thus, Plaintiffs 12 fail to demonstrate a reasonable probability of prevailing on their defamation and false 13 light claims. Cf. Alszeh v. Home Box Office, 67 Cal. App. 4th 1456, 1464 (1998) (stating 14 that “when a [false light] invasion of privacy claim rests on the same allegations as a 15 claim for defamation, the former cannot be maintained as a separate claim if the latter 16 fails as a matter of law.”). Accordingly, the Court GRANTS Defendants’ motion to 17 strike Plaintiffs’ defamation and false light claims. As such, the Court also DENIES 18 Plaintiffs’ request for attorneys’ fees, as the Court does not find Defendants’ motion to 19 strike to be frivolous. 20 Lastly, the Court DENIES Plaintiffs’ request for limited discovery. Plaintiffs do 21 not describe for what purpose they wish to conduct limited discovery aside from 22 “substantiat[ing] any perceived defect,” nor describe what type of discovery they wish to 23 take, nor what relevant evidence they believe they could uncover in conducting such 24 discovery. Further, Plaintiffs have had multiple opportunities to amend all of their 25 claims, and Plaintiffs’ defamation and false light claims do not satisfy even basic 26 pleading standards. 27 // 28 // -29- 15cv1606-MMA (PCL) 1 COSTS AND FEES 2 Defendants request an award of attorney’s fees and costs pursuant to section 3 425.16(c)(1), and request leave to file further briefing regarding the proper amount. A 4 prevailing defendant on a motion to strike “shall be entitled to recover his or her 5 attorney’s fees and costs.” Cal. Civ. Proc. Code § 425.16(c)(1). The Court GRANTS 6 Defendants’ request and sets the following briefing schedule: 7 1. Defendants must file a supporting declaration of counsel outlining the basis 8 for the fees and costs incurred on or before June 12, 2017. Defendants’ 9 brief must not exceed 15 pages, excluding exhibits. 10 11 2. Plaintiffs may file a response to Defendants’ declaration, if any, on or before June 26, 2017. Plaintiffs’ response must not exceed 8 pages. 12 13 CONCLUSION Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART 14 Defendants’ motion to dismiss, as set forth above, and GRANTS Defendants’ motion to 15 strike as to Plaintiffs’ defamation and false light claims. 16 IT IS SO ORDERED. 17 18 19 20 Dated: May 25, 2017 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 21 22 23 24 25 26 27 28 -30- 15cv1606-MMA (PCL)

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