Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-02218-LAB-RBB

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1 DECLUES, BURKETT & THOMPSON, LLP EXEMPTFROMFEES PER: GOVERNMENT CODE SECTION 6103 Attorneys at Law 2 JEFFREY P. THOMPSON, Esg. (State Bar No. 136713) JENNIFER K. BERNEKING, Esq. (State Bar No. 167112) 3 17011 Beach Blvd., Ste. 400 Huntington Beach, CA 92647-7455 4 Phone: {714) 843-9444 Fax: (714) 843-9452 5 e-mai1 address:[email protected]
6 7 Attorneys for Defendants, CITY OF IMPERIAL (a public entity) and MIGUEL COLON (employee of a public entity)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
JOHN ESPINOZA, an individual, CASE NO.: 07CV2218 LAB (RBB)

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Plaintiff,
vs.

Complaint Filed: 11/20/07 Judge Larry A. Burns Courtroom 9

13 CITY OF IMPERIAL, a public entity; MIGUEL COLON, an individual; IRA 14 GROSSMA~,.' an individual; and DOES 1 THROUGtt 50, inclusive, 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28

DEFENDANTS CITY OF IMPERIAL AND MIGUEL COLON'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT CITY AND COLON'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT Date: June 2, 2008 Time: 11:15 a.m, Crtrm.:9 Trial Date: None Set

Defendants CITY OF IMPERIAL (a public entity) ("CITY") and lVIIGUEL COLON (employee of a public entity) ("COLON"), hereby reply to plaintiff JOHN ESPINOZA's Opposition to defendant CITY and COLON's Motion to Dismiss plaintiffs First Amended Complaint.
1. PLAINTIFF HAS IGNORED ESTABLISHED CASE LAW THAT HOLDS THAT INDIVIDUALS SUCH AS COLON ARE NOT LIABLE FOR DISCRIMINATION OR RETALIATION UNDER THE ADA AND FEHA

Plaintiff incorrectly contends in his Opposition to defendants' Motion to Dismiss that individuals such as defendant MIGUEL COLON can be held liable for discrimination

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1 and retaliation based upon an agency theory of liability. (Opposition ("Opp.") p. 3, 11. 14 2 3 4 5 6 7 8
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23). This is clearly incorrect based upon well established federal and state case law. The California Supreme Court and the Ninth Circuit have both recognized that individuals cannot be held liable for discrimination or retaliation under the Americans with Disabilities Act ("ADA") or the California Fair Employment and Housing Act ("FEHA"). Indeed, this was the holding in Janken v. GM Hughes Electronics, 46 Cal.AppAth 55 (1996), which was ratified in Reno v. Baird, 18 Ca1.4th 640 (1998); Walsh v. Nevada Dept.
of Human Resources, 471 F.3d 1033, 1037-1038 (9th Cir. 2006); Miller v. Maxwell's International, Inc., 991 F.2d 583 (9th Cir. 1993); and Jones v. The Lodge at Torrey Pines

10 Partnership, 42 Ca1.4th 1158, 72 Cal.Rptr.3d 624, 625 (2008). These cases set forth the

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standard by which plaintiff s first, third, and sixth causes of action for disability

12 discrimination and retaliation under the ADA and the FEHA must be viewed. As there is 13 no individual liability available under any of these three causes of action, the Court may 14 properly grant defendant COLON's Motion to Dismiss the first, third, and sixth causes of 15 action without leave to amend. 16 17 18 2. DEFENDANT COLON CAN ASSERT STATUTORY
IMlVIUNITIES AS TO THE THIRD AND SIXTH CAUSES
OF ACTION


Plaintiff asserts in his Opposition that individual defendant COLON can be held

19 individually liable for the discrimination and retaliation causes of action despite his 20 21 22 23 24 25 26 27 28 immunity. (Opp. p. 4, 11. 7-9). However, plaintiffs Opposition misinterprets the statutory immunity provided public employees under California Government Code § 820.2. As such, plaintiff has failed to assert any persuasive authority in his Opposition to contradict individual defendant COLON's assertion that he is entitled to statutory immunities and therefore, the Court may grant the Motion to Dismiss the third and sixth causes of action. In Caldwell v. Montoya, 10 Ca1.4th 972 (1995), members of the school district board were afforded discretionary act immunity for voting to terminate the district's superintendent regardless of the fact that the reasons for termination may have been discriminatory. Indeed, the Supreme Court in Caldwell assumed that the Board members'
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actions constituted a violation of the act.

Nevertheless, immunity applied.

Here,

defendant COLON was allegedly responsible for plaintiff having to undergo a psychological examination, a personnel decision. Under Caldwell, individual COLON is immune for his personnel action, which is purely discretionary. Moreover, the court in
Kemmerer v. County of Fresno, 200 Cal.App.2d 1426, 1438 (1988), makes it clear that

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personnel actions, like that of requiring an employee to undergo a psychological evaluation, are discretionary acts entitled to immunity. Further, in Johnson v. State of California, 69 Ca1.2d 782 (1968), the Court undertook a comprehensive examination of the rationale underlying the discretionary

10 immunity doctrine. The Johnson Court expressly rejected any attempt to characterize the 11 immunity as a mere "semantic inquiry" into the literal meeting of "discretionary" and

12 "ministerial" in order to apply the terms to a particular fact situation. Rather, Johnson
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asserted that the judicial inquiry must be directed principally to the policy considerations

14 relevant to the purpose of immunity. Id. at 793. To do otherwise would defeat the purpose 15 of the immunity designed to protect persons from claims of carelessness, malice, bad 16 judgment, or abuse of discretion in the formulation of policy. Caldwell, supra, 10 Ca1.4th 17 at 983-984. Accordingly, determining whether a particular act or omission of a public 18 official is subject to immunity under California Government Code § 820,2 depends upon a 19 sensitive and discriminating examination of the factual circumstances in light of the basic 20 21 22 23 24 25 26 27 28 reasons for immunity. Johnson, supra, 69 Ca1.2d at 787. The central policy consideration to be taken into account when applying the concept of immunity is the need for "judicial abstention in areas in which the responsibility for basic policy decisions has been submitted to coordinate branches of government." Id. at 793. This fundamental approach is essential to prevent judicial interference with the decision-making responsibilities expressly entrusted to government officials. Id. at 793 794. In Caldwell, the Court said that this policy rationale furthered a public interest in securing free and independent judgment of public employees responsible for dealing with

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1 personnel problems and encouraging both unfettered debate and judgment about a decision 2 3 4 5 6 concerning a tenured public employee. Caldwell, supra, 10 Cal.4th at 982-983. In evaluating whether a particular act or omission is discretionary or ministerial, it is crucial to appreciate the distinction between "planning" and "implementation" phases of a policy decision. A "discretionary" act is marked by a deliberate and considered decision in which a conscious balancing of risks and advantages takes place. Id. at 981, citing

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Johnson, supra, 69 Cal.2d at 793-794. On the other hand, the hallmark of a "ministerial"
act is that it occurs in the course of implementing policy decisions and routine operational activity. Accordingly, a public employee may obtain discretionary immunity protection by showing that he did in fact make a conscious policy decision, with a deliberate balancing of risk and advantages, that was within the area of his or her official discretion. Johnson,

13 supra, 69 Cal.2d at 794, fn. 8. Such immunity extends to all incidental and collateral acts 14 15 16 17 18 19 20 21 in carrying out the policy decision. Cal.App.2d 165 (1969). In applying this separation of judicial/legislative power, post-Johnson Courts have held that discretionary immunity exists where a public employee is given broad discretionary authority to assess the relevant circumstances and, on the basis of that assessment, to choose between alternative courses of action for choosing general statutory objectives. See, Susman v. City ofLos Angeles, 269 Cal.App.2d 803, 817 (1969); Skinner v. Vacaville Unified School District, 37 Cal.App.4th 31 (1995).

Bank of America v. County of Los Angeles, 270

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Post-Johnson Courts have also held that an official decision to act or not act is
discretionary if the act or omission was the result of an actual exercise of policy or planning-level discretion in which risks and advantages were deliberately weighed and a balance struck. Roseville Community Hospital v. State of California, 74 Cal.App.3d 583 (1977); Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869 (1990); Caldwell, supra, 10 Cal.4th at 972. In Caldwell, supra, the California Supreme Court unanimously held that school board members were protected under immunity provisions of Government
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Code § 820.2 from charges of race and age discrimination brought by a school

superintendent terminated by the Board. The Court held that the school board members' determination to terminate the superintendent's employment was a basic government policy decision protected under Government Code § 820.2, regardless of the individual members' motives. The court held that such personnel decisions are "areas of quasi legislative decision making . ..
Caldwell, supra, 10 Ca1.4th at 981.

sufficiently sensitive" to call for judicial abstention.

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Moreover, plaintiff cannot ignore the fact that the Court in Kemmerer, supra, at 1436-1437, found that an investigation prior to the imposition of disciplinary proceedings

10 and the disciplinary proceeding itself were all cloaked with immunity under Government 11
Code § 821.6, which provides for immunity for instituting judicial or administrative

12 proceedings within the scope of the public employee's employment. Indeed, Kemmerer 13 14 15 16 17 states: The investigation, the preliminary notice and the proceedings before the civil service commission come WIthin the scope of an "administrative proceeding" as the term is used in Governnlent Code section 821.6. It follows that pursuant to section 821.6 Kelley, Velasquez and the County are immune from tort liability for any acts done to institute and prosecute the disciplinary proceeding.

18 Id. (Emphasis in original). 19 20 21 22 23 24 25 26 27 28
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Likewise herein, the decisions concernmg plaintiff are also analogous to the decisions which were found to be cloaked with immunity under Caldwell. These

deliberate and considered decisions concerning plaintiffs job status were arrived at with a conscious balancing of risks and advantages. Thus, the defendant COLON is clearly protected by immunity under the Government Code. As a result, individual defendant COLON must be found immune from plaintiffs third and sixth causes of action because he used discretionary authority to determine his actions. Because individual defendant COLON is immune for his discretionary personnel actions, the CITY is also immune by way of Government Code § 815.2. Therefore, the

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1 Court may sustain defendants CITY and COLON's Motion to Dismiss the third and sixth 2
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causes of action in their entirety. PLAINTIFF HAS NOT SET FORTH PRIMA FACIE
3. CAUSES OF ACTION FOR DISABILITY DISCRIMINATION,
HARASSMENT, OR RETALIATION
As set forth in defendant CITY and COLON's moving points and authorities, plaintiff pleads nothing but conc1usionary allegations in his first, second, fifth, and sixth causes of action that defendants discriminated, harassed and retaliated against him. Indeed, plaintiffs First Amended Complaint states only conc1usionary allegations that defendants' actions must have necessarily been discriminatory, harassing and/or

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10 retaliatory. Plaintiffs Opposition does not contest defendants' Motion to Dismiss these 11 causes of action with any specific authority establishing that his allegations are sufficient This simply does not meet the pleading

12 to set forth a prima facie cause of action.

13 standards set forth in Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1459 (9th Cir. 1985);
14 Gray v. Superior Court, 181 Cal. App.3d 813 (1986), disapproved on other grounds, Foley

15 v. Interactive Data Corp., 47 Cal.3d 654,687,700 n. 42 (1988), and in Guthrey v. State of
16 California, 63 Cal.AppAth 1108 (1998). As a result, the Court may sustain defendant

17 CITY and COLON's Motion to Dismiss the first, second, fifth, and sixth causes of action 18 without leave to amend. 19 20 21 22 23 24 25 26 27
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4. PLAINTIFF HAS IGNORED STATUTORY LANGUAGE AND CASE LAW WHICH PRECLUDES INDIVIDUAL LIABILITY FOR FAILURE TO ACCOMMODATE UNDER THE ADA AND FEHA Plaintiff incorrectly contends in his Opposition to defendants' Motion to Dismiss that individuals such as defendant COLON can be held liable for failure to accommodate based upon an agency theory of liability. (Opposition ("Opp.") p. 8, 11. 18-19). This is the same erroneous argument plaintiff has made with respect to his causes of action for disability discrimination and retaliation under the ADA and FEHA. Plaintiff is once again incorrect based upon case law and statutory construction. The Ninth Circuit Court of Appeals in Walsh v. Nevada Dept. ofHuman Resources,
supra, 471 F.3d at 1037-1038, held that supervisors and coworkers are not individually

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1 liable under the ADA for disability discrimination, and by extension, failure to 2 3 4 5
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accommodate. Additionally, California Government Code § 12940(k) states on its face that only an employer can be held liable for failure to accommodate under the FEHA. As a result, the Court may properly sustain defendant COLON's Motion to Dismiss the second and fourth causes of action without leave to amend. 5. DEFENDANT COLON ENJOYS QUALIFIED INIMUNITY FOR THE CAUSE OF ACTION BASED UPON 42 USC § 1983 As noted in the moving papers, Brewster v. Board ofEducation, 149 F.3d 971, 977 (9th Cir. 1998) makes it clear that qualified immunity applies in this case as to plaintiffs

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10 seventh cause of action. 11 In Brewster, the Ninth Circuit explained that the law regarding public-employee free

12 speech claims will rarely, if ever, be sufficiently clearly established to preclude qualified 13 immunity. 149 F.3d at 979-980. Brewster then cited cases including Moran v. State of
14 Washington, 147 F.3d 839 (9th Cir. 1998). Moran concluded qualified immunity will

15 apply when a balancing test is required because public officials cannot be expected to 16 predict the outcome of such balancing or engage in it themselves. 147 F.3d at 847, fn. 5. 17 When read together, these two cases make clear that qualified immunity applies here. 18 Individual defendant COLON could not have known taking the alleged actions

19 against plaintiff violated clearly established constitutional rights. For this very reason the 20 21 22 23 24 25 26 27 28 moving party enjoys qualified immunity. This Court may properly sustain defendant COLON's Motion to Dismiss that seventh cause of action without leave to amend. 6. PLAINTIFF HAS NOT SET FORTH ANY SUBSTANTIVE OPPOSITION TO DEFENDANT COLON'S MOTION TO DISMISS THE EIGHTH CAUSE OF ACTION Plaintiffs Opposition fails to address defendant CITY and COLON's Motion to Dismiss the eighth cause of action with any substantive argument. Instead, plaintiff makes a vague assertion in his Opposition that a complaint should not be dismissed because plaintiff erroneously relies on the wrong legal theory. (Opp. p. 10, 11. 6-7). Herein,

defendants contend that this cause of action is duplicative of plaintiffs first and fifth
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1 causes of action, and as a result, should be dismissed. Defendants have not argued that the 2 3 4 5
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entire complaint should be dismissed based upon this one cause of action. As plaintiff has failed to provide any meaningful opposition to defendants' motion to dismiss the eighth cause of action, the Court may properly grant defendants' motion without leave to amend. PLAINTIFF HAS NOT STATED SUFFICIENT FACTS TO SET 7. FORTH A CLAIM FOR INVASION OF PRIVACY Plaintiffs Opposition does not address the basis of defendant CITY and COLON's Motion to Dismiss the ninth cause of action for invasion of privacy: The fact that the

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10 basis for this action is unclear. Instead, plaintiff states that he has a "zone of privacy." 11 (Opp. p. 10,11. 13-14). While this may be the case, the crux of defendants' argument that

12 there are insufficient facts supporting this cause of action has gone unaddressed by 13 plaintiff. As such, the Court may properly grant defendants' Motion to Dismiss the ninth 14 cause of action without leave to amend. 15 16 17 PLAINTIFF WRONGLY CONTENDS THAT DEFENDANT 8. COLON MAY BE HELD LIABLE FOR WRONGFUL TERMINATION Once again, plaintiff, in his Opposition, has ignored well established case law with

18 regard to defendant COLON's Motion to Dismiss the tenth cause of action for wrongful 19 termination in violation of public policy against him. In Reno v. Baird, supra, the Court 20 21 22 23 24 25 26
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held that not only can individuals like defendant COLON not be held liable for acts of intentional discrimination under the FEHA, but that such an individual employee cannot also be held liable for wrongful discharge in violation of public policy. Reno, 18 Ca1.4th at 663-664. Indeed, plaintiff has not provided any meaningful opposition setting forth any authority that defendant COLON may be held liable for wrongful termination in violation of public policy. As a result, the Court may properly grant defendant COLON's Motion to Dismiss the tenth cause of action without leave to amend.
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9. PLAINTIFF CANNOT STATE A CAUSE OF ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AGAINST THE CITY Contrary to plaintiff's assertions in his Opposition, plaintiff cannot state a common law cause of action for wrongful termination in violation of public policy against the CITY. As pointed out by the court in Palmer v. Regents of the University of California, 107 Ca1.AppAth 899, 903 (2003), a plaintiff asserting a common law cause of action for wrongful termination in violation of public policy is required to follow the holding in
Westlake Community Hospital v. Superior Court, 17 Ca1.3d 465, 485 (1976), with regard

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to exhaustion of internal remedies prior to instituting any action.
Westlake involved a physician's challenge to a hospital administration board's

decision to deny him staff privileges. In ruling that the physician was required to exhaust

12 all possible administrative remedies, including writ of mandamus, before bringing a civil 13 action, the Court stated: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 We further conclude that whenever a hospital, pursuant to a quasi-judicial proceeding, reaches a decision to deny staff privileges, and aggrieved doctor must first succeed in setting aside die quasi-judicial action before he may institute a tort action for damages. As we pomt out, mandate has been the judicial means for reviewing analogous quasi-judicial determinations, and we believe before hospital board or community members are subjected to potential personal liability for actions taken in a quasi-judicial setting, an aggrieved doctor should De required to overturn the challenge to the quasi judicial decision directly in a mandamus action .... (O)nce the hospital's quasi-judicial decision has been found improper in a mandate actioni an excluded doctor may proceed in tort against the hospital, it board or committee members or any others legally responsible for the denial of staff privileges,
Id., 17 Ca1.3d at 469.

Similarly, in City of Fresno v. Superior Court, 188 Ca1.App.3d 1484 (1987), the Court granted summary judgment based on the finding that the city employee had not exhausted all administrative remedies before bringing a civil action for wrongful discharge, intentional interference with contractual relations, and intentional and negligent infliction of emotional distress. As a result of the holdings in Palmer and Westlake, plaintiff's common law cause of action for wrongful termination in violation of public policy is therefore inapplicable and
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1 the CITY's Motion to Dismiss the tenth cause of action must be sustained without leave to 2 3 4 5 6 7 8 9
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amend.

10. BY REFERRING TO EXTRINSIC EVIDENCE, PLAINTIFF ADMITS THAT HIS DEFAMATION CAUSE OF ACTION IS
DEFICIENT

In plaintiff s Opposition, plaintiff refers to a transcript supporting a declaration submitted in opposition to defendant GROSSMAN's Anti-SLAPP motion. (Opp., p. 12, 11. 14-18). This amounts to a tacit admission that his eleventh cause of action for

defamation is inadequately plead against the defendants. As such, the Court may sustain defendant CITY and COLON's demurrer to eleventh cause of action.

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11. PLAINTIFF HAS NOT PROPERLY PLEAD A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Plaintiffs Opposition to defendants' Motion to Dismiss the eleventh cause of action for intentional infliction of emotional distress fails to address the fact that plaintiff has

14 failed to plead the outrageous conduct required to make out a cause of action for 15 intentional infliction of emotional distress. Instead, once again, plaintiff is apparently 16 referring to extrinsic evidence to support this cause of action and has not set forth adequate 17 facts to support this cause of action. Indeed, all of the acts attributed to defendants are due 18 to personnel related actions and do not rise to the level of "outrageous" as necessitated by 19 this cause of action. 20 21 22 23 See, Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.

Therefore, the Court may properly sustain defendants' Motion to Strike the eleventh causes of action.

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CONCLUSION

For the reasons set forth above, and in the moving papers, defendants CITY OF

24 IMPERIAL and MIGUEL COLON respectfully request that the Court grant their Motion 25 26 27 28 to Dismiss in its entirety. Defendants further request that leave to amend be denied. Dated: May 23, 2008

DECLUES, BURKETT & THOMPSON, LLP BY: s/1. ThOmson . JEFFREY P. TH MPSON, Esq. JENNIFER K. BERNEKING, Esq. Attorneys for Defendants, CITY OF IMPERIAL, (a public entity) and MIGUEL COLON (employee of a public entity)
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3 4 5 6 7 STATE OF CALIFORNIA COUNTY OF ORANGE

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PROOF OF SERVICE
(C.C.P. section 1013a(3»

SS.

I am over the age of 18 and I am not a pa1}y to the within action. I am employed by DECLUES, BURKETT & THOMPSON, LLP, in the County of Orange, at 17011 Beach Blvd., Ste. 400, Huntington Beach, California, 92647-5995. On May 23, 2008, I served the attached: DEFENDANTS CITY OF IMPERIAL AND MIGUEL COLON'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT CITY AND COLON'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT On the interested parties in this action by: XXX Placing true copies thereof in sealed envelopes, addressed as described below. Vincent J. Tien Law Offices of Vincent J. Tien 17291 Irvine Blvd., Suite 150 Tustin, CA 92780 White, Oliver & Amundson
550 West C Street, Suite 950
San Diego, CA 92101
(619) 2J9-0300


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XXX BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day, witn postage thereon fully prepaid at Huntington Beach, California, in the ordinary course ofbusiness. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. BY PERSONAL SERVICE: I caused such an envelope to be delivered by hand to the offices of the addressees. BY FEDERAL EXPRESS (Receipt/Airbill No.: )

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BY FACSIMILE TRANSMISSION: From FAX NO. (714) 843-9452 to FAX No.: at or about Time, directed to Name. The facsimile machine I used complied with Rule 2003(3), and no error was reported by the machine. Pursuant to Rule 2005(1), I caused the machine to print a record of the transmission, a copy of which is attached to this declaration. XXX FEDERAL: I declare I am employed in the office of a member of the Bar of this Court at whose direction the service was made. above I declare, under penalty of perjury under the laws of the State of California, that the IS true and correct. Executed on May 23, 2008, at Hu.DUJ·~(')ij.I/l:j