1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 AARON REEL, Case No.: 22-cv-00526-W-KSC 14 Plaintiff, 15 ORDER GRANTING IN PART AND v. 16 DENYING IN PART DEFENDANTS’ THE CITY OF EL CENTRO, et. al, 17 MOTION TO DISMISS FIRST Defendants. 18 AMENDED COMPLAINT [DOC. 27] 19 20 Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s First 21 Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) [Doc. 27]. Plaintiff 22 opposes the motion. 23 The Court decides the matter on the papers submitted and without oral argument. 24 See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS IN PART AND 25 DENIES IN PART Defendants’ motion [Doc. 27] WITHOUT LEAVE TO AMEND. 26
27 28 1 I. BACKGROUND 2 Plaintiff filed his initial complaint on April 15, 2022, bringing nine causes of 3 action against Defendants City of El Centro (“El Centro”), Chief of Police Brian Johnson 4 (“Johnson”), and Marcela Piedra (“Piedra”). The Defendants collectively filed a motion 5 to dismiss the initial complaint [Doc. 7], which the Court granted in part and denied in 6 part, with leave to amend. (See Order on First Mot. to Dismiss [Doc. 18].) Plaintiff 7 thereafter filed the First Amended Complaint (“FAC”) [Doc. 24]. Defendants City and 8 Piedra1 (collectively, “Defendants”) now move to dismiss the FAC under Federal Rule of 9 Civil Procedure 12(b)(6). (Mot. [Doc. 27].) 10 The underlying factual allegations in the FAC are essentially the same as those in 11 Plaintiff’s initial complaint. (See Lined Version Amended Complaint [Doc. 25] ¶¶ 1-67.) 12 The Court will not recite the alleged facts again here. The Court refers the party to the 13 Court’s order on Defendant’s first motion to dismiss [Doc. 18] for a full recitation of 14 Plaintiff’s allegations. If any new allegations are the subject of Defendants’ arguments in 15 their motion, the Court will address them below. 16 17 II. LEGAL STANDARD 18 Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to 19 dismiss for failing “to state a claim upon which relief can be granted.” FED. R. CIV. P. 20 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint’s sufficiency. See 21 N. Star Int’l v. Ariz. Corp. Comm’n., 720 F. 2d 578, 581 (9th Cir. 1983). A complaint 22 may be dismissed as a matter of law either for lack of a cognizable legal theory or for 23 insufficient facts under a cognizable theory. Balisteri v. Pacifica Police Dep’t., 901 F.2d 24 696, 699 (9th Cir. 1990). In ruling on the motion, a court must “accept all material 25 26 27 28 1 Johnson has obtained separate counsel and answered the FAC on December 5, 2022. (See Doc. 26.) 1 allegations of fact as true and construe the complaint in a light most favorable to the non- 2 moving party.” Vasquez v. L.A. Cnty., 487 F. 3d 1246, 1249 (9th Cir. 2007). 3 To survive a motion to dismiss, a complaint must contain “a short and plain 4 statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 5 8(a)(2). The Supreme Court has interpreted this rule to mean that “[f]actual allegations 6 must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 554, 555 (2007). The allegations in the complaint must “contain 8 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 9 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 10 Well-pled allegations in the complaint are assumed true, but a court is not required 11 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 12 inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 13 Warriors, 266 F. 3d 979, 988 (9th Cir. 2001). 14 15 III. DISCUSSION 16 A. First Cause of Action: Failure to Perform Mandatory Duty Under Cal. 17 Gov. Code § 815.6 18 California Government Code § 815.6 provides that “[w]here a public entity is 19 under a mandatory duty imposed by an enactment that is designed to protect against the 20 risk of a particular kind of injury, the public entity is liable for an injury of that kind 21 proximately caused by its failure to discharge the duty unless the public entity establishes 22 that it exercised reasonable diligence to discharge the duty.” CAL. GOV. CODE § 815.6. 23 To state a cause of action under this section, Plaintiff must plead that (1) El Centro was 24 under a “mandatory duty” imposed by statute (2) the enactment “is designed to protect 25 against the risk” of the particular injury alleged here, and (3) El Centro failed to discharge 26 the duty. CAL. GOV. CODE § 815.6; see also Haggis v. City of Los Angeles, 22 Cal. 4th 27 490, 499–500 (2000). 28 1 1. Cal. Gov. Code § 1031 2 Plaintiff first argues that California Government Code § 1031 satisfies the requisite 3 elements of section 815.6. 4 The Court agrees that section 1031 imposed a mandatory duty on El Centro to 5 perform a background check prior to hiring Johnson as Chief of Police. An enactment 6 creates a mandatory duty within the meaning of section 815.6 if it requires a public 7 agency to “take a particular action” and “affirmatively imposes the duty and provides 8 implementing guidelines.” San Mateo Union High Sch. Dist. v. Cnty. of San Mateo, 213 9 Cal. App. 4th 418, 429 (2013) (citation omitted). A mandatory duty is imposed “when an 10 enactment requires an act that is clearly defined and not left to the public entity’s 11 discretion or judgment.” State Dep't of State Hosps. v. Superior Ct., 61 Cal. 4th 339, 350 12 (2015). Section 1031 states that peace officers must be “of good moral character, as 13 determined by a thorough background investigation.” CAL. GOV. CODE § 1031. This 14 provision satisfies the first prong of section 815.6 because it requires public entities to 15 “take a particular action,” i.e., perform a background check on all peace officers. San 16 Mateo Union High Sch. Dist., 213 Cal. App. 4th at 429. 17 But section 1031 fails at the second element of California Government Code § 18 815.6 because section 1031 is not designed to protect against the particular kind of injury 19 Plaintiff suffered. The injury must be “‘one of the consequences which the [enacting 20 body] sought to prevent through imposing the alleged mandatory duty.’” Hoff v. 21 Vacaville Unified School Dist., 19 Cal. 4th 925, 939, (1998) (fn. omitted). This inquiry is 22 about “the legislative purpose of imposing the duty.” Haggis, 22 Cal. 4th at 499 23 (emphasis in original). 24 Here, the injury suffered was “retaliatory and adverse employment actions” by 25 Defendant Johnson. (FAC ¶ 78.) Both the text of the statute and its legislative history 26 demonstrate that it is not designed to protect against this type of harm. The text of the 27 statute states that the enactment is about ensuring the minimum standards of competence 28 for public officers to “hav[e] powers of peace officers[.]” CAL. GOV. CODE § 1031. And 1 the legislative history indicates that the background check serves the purpose of ensuring 2 that “peace officers meet certain minimum standards, including being found free from 3 any emotional or mental condition that might adversely affect the exercise of the powers 4 of a peace officer.” See 2003 Cal. Legis. Serv. Ch. 777 (A.B. 1669). Plaintiff has not 5 identified anything in either the text of the law or its legislative history indicating that 6 retaliatory and/or adverse employment actions is one of the consequences that the 7 California legislature sought to prevent through section 1031. 8 Plaintiff argues that Sager v. Cnty. of Yuba, 156 Cal. App. 4th 1049 (2007) 9 supports the position that section 1031 was designed to protect against the risk of harm 10 alleged. The Court disagrees. Sager arose from a county’s decision that a police officer 11 was unfit to exercise police powers under section 1031. The portion of the case cited by 12 Plaintiff was analyzing harms potentially arising from a public entity employing an 13 officer who does not satisfy section 1031 and says nothing about the purpose behind the 14 law. The case, in fact, does not discuss the purpose or “design” of the law at all; its 15 discussion of harms reinforces that the provisions of that law are intended to prevent 16 harms that may occur when a peace officer exercises his or powers as a peace officer. 17 See Sager, 156 Cal. App. 4th at 1061 (“It is not the appropriate public policy to wait until 18 Sager actually shoots the other woman in the courtroom, kills herself on duty, overreacts 19 to a perceived threat or loses her temper in a dangerous situation to conclude that she is 20 mentally unfit for duty.”). 21 In short, the Court is not persuaded that preventing retaliatory and/or adverse 22 employment actions was one of the purposes behind the enactment of section 1031, as 23 both the text and the legislative history indicate that the law was intended to set minimum 24 standards for a person to exercise the powers of a peace officer. Section 1031 therefore 25 does not provide a basis for a cause of action under section 815.6. 26 2. Cal. Penal Code § 832.12 27 Plaintiff next argues that California Penal Code § 832.12 satisfies all the necessary 28 elements of section 815.6. (Opp. at 4.) But the key provision cited by Plaintiff was not 1 law until January 2022, after Defendant Johnson was hired in 2018 and fired in 2021. 2 The first version of Penal Code §832.12 was enacted in January 2019, but that version 3 did not impose a mandatory duty on El Centro to obtain personnel files of prospective or 4 current employees at any time during Defendant Johnson’s employment. The law’s 5 initial iteration, which is now subsection (a), states that an agency is required to maintain 6 files but says nothing about obtaining files from elsewhere. Only the current subsection 7 (b) refers to an agency obtaining files, but that subsection was not in force until January 8 2022. That law, therefore, cannot stand as the basis for a cause of action under section 9 815.6. 10 3. 11 Cal. Code Regs. § 1953 11 Plaintiff offers 11 CCR § 1953 as the final option to satisfy section 815.6. Like 12 section 1031, this law is not designed to protect against the harm alleged in this case. 13 Here, again, the text of the law shows that the enactment is designed to “verify” 14 characteristics required “to perform the duties of a peace officer.” CAL. CODE REGS. tit. 15 11, § 1953. Related California laws likewise indicate that the law is designed to protect 16 the public’s interest in having peace officers who meet the standards set by statute. See 17 CAL. CODE REGS. tit. 11, § 1950 (“The purpose of these regulations is to implement the 18 minimum peace officer selection standards set forth in California Government Code 19 sections 1029, 1031 and 1031.4, and as authorized by California Penal Code section 20 13510.”) (emphasis added); CAL. PENAL CODE § 13510 (a)(1) (“For the purpose of 21 raising the level of competence of local law enforcement officers . . . . [with] rules 22 establishing and upholding minimum standards relating to physical, mental, and moral 23 fitness that shall govern [their] recruitment”). The Court finds that this statute does not 24 satisfy section 815.6. 25 Since none of the cited statutes meet the requirements of California Government 26 Code § 815.6, the first cause of action is DISMISSED WITHOUT LEAVE TO 27 AMEND. 28 1 B. Second Cause of Action: Negligent Hiring, Supervision & Training 2 against Defendant Piedra and City of El Centro pursuant to Gov. Code § 3 815.2(a) 4 Plaintiff’s second cause of action alleges that Piedra and El Centro are liable for 5 negligent hiring, supervision, and training. (FAC ¶ 81-95.) Defendants moves to dismiss 6 this cause of action, arguing that Piedra and (vicariously) El Centro are not liable because 7 Piedra did not have a “special relationship” with Plaintiff and that they both have 8 immunity from liability. (Mot. at 25.) 9 1. Sufficiency of Negligent Hiring Allegations 10 California Government Code § 820 provides that unless “a public employee is 11 liable for injury caused by his act or omission to the same extent as a private person.” 12 CAL. GOV. CODE § 820(a). California Government Code § 815.2 provides that “[a] 13 public entity is liable for injury proximately caused by an act or omission of an employee 14 of the public entity within the scope of his employment if the act or omission would . . . 15 have given rise to a cause of action against that employee[.]” CAL. GOV. CODE § 16 815.2(a). In short, when a public employee’s act or omission occurs in the scope of his or 17 her employment, the public entity that employs that individual can be held vicariously 18 liable for the injury. See French v. City of Los Angeles, 2021 WL 6752229, *7 (C.D. Cal. 19 2021) (“[I]f Plaintiffs adequately allege a negligent hiring, supervision, and retention 20 claim against the City’s personnel, they can proceed on a theory of vicarious liability.”). 21 Thus, under California Government Code § 815(a), El Centro can be vicariously liable if 22 Plaintiff sufficiently states a claim for negligent hiring as to Piedra.2 23 24
25 26 2 Defendants argue that El Centro should be dismissed from this cause of action because the Court held that El Centro could not be held directly liable for negligent hiring. See Order on First Mot. to Dismiss 27 [Doc. 18] at 15. Defendants are correct that El Centro cannot be held directly liable for this cause of action, but that does not preclude vicarious liability through Piedra’s actions. See CAL. GOV. CODE § 28 815.2(a). 1 To state a cause of action for negligence against Piedra (and vicariously against El 2 Centro), Plaintiff must plead that Piedra had a duty to use due care, that she breached that 3 duty, and that the breach was the proximate or legal cause of the resulting injury. Hayes 4 v. County of San Diego, 57 Cal. 4th 622, 629 (2013) (brackets omitted). Defendants 5 argue that Plaintiff fails to allege a duty of care in this case because there was no “special 6 relationship” between Piedra and Plaintiff. (Mot. at 28.) 7 “As a general rule, one owes no duty to control the conduct of another.” Davidson 8 v. City of Westminster, 32 Cal. 3d 197, 203 (1982). But “courts have carved out an 9 exception to this rule in cases in which the defendant stands in some special relationship 10 to either the person whose conduct needs to be controlled or in a relationship to the 11 foreseeable victim of that conduct.” Tarasoff v. Regents of Univ. of California, 17 Cal. 12 3d 425, 435 (1976). Thus, Plaintiff can satisfy the duty of care element by alleging facts 13 that, if true, would establish that Defendant Piedra had a “special relationship” with 14 Plaintiff. C.A. v. William S. Hart Union High School Dist., 53 Cal. 4th 861, 875 (2012); 15 accord Kendrick v. County of San Diego, No. 15-cv-2615-GPC(AGS), 2018 WL 16 1316618, at *10 (S.D. Cal. Mar. 14, 2018) (“[A] plaintiff must allege a special 17 relationship in order to bring a negligent hiring claim”); Lindsay v. Fryson, No. 2:10-cv- 18 02842-LKK-KJN, 2012 WL 2683019, at *6 (E.D. Cal. July 6, 2012) (noting that William 19 S. Hart “limited the viability of type of vicarious liability claim at issue ... to situations 20 where the supervisory or administrative personnel have a ‘special relationship’ with the 21 plaintiff or class of plaintiffs”), findings and recommendations adopted, 2012 WL 22 3727157 (E.D. Cal. Aug. 27, 2012). 23 Plaintiff pleads facts sufficient to demonstrate such a relationship. Relationships 24 between “employers and employees” are “special relationships that give rise to an 25 affirmative duty to protect.” Brown v. USA Taekwondo, 11 Cal. 5th 204, 216 (2021). 26 Plaintiff alleges that Piedra “was at all times relevant the City Manager for the City of El 27 Centro” (FAC ¶ 4), had “official policy-making authority over actions such as the ones at 28 issue in this Complaint” (id.), and was “responsible for the hiring, supervision and control 1 of [the city’s] employees” (FAC ¶ 83). Furthermore, Plaintiff alleges that, pursuant to the 2 City of El Centro’s Municipal Code, Piedra was the “administrative head of the 3 government of the city” and had “the authority to control, order, and give directions to all 4 heads of departments and to subordinate officers and employers of the city[,]” which 5 includes Plaintiff. (Id.) 6 2. Discretionary Immunity 7 Under California Government Code § 820.2, “a public employee is not liable for 8 an injury resulting from his act or omission where the act or omission was the result of 9 the exercise of the discretion vested in him, whether or not such discretion be abused.” If 10 Piedra has immunity under this provision, then El Centro has immunity under California 11 Government Code § 815.2, which states that “a public entity is not liable for an injury 12 resulting from an act or omission of an employee of the public entity where the employee 13 is immune from liability.” Defendants argue that Piedra has discretionary act immunity 14 for the negligent hiring, supervision, and training claim because “[h]ow background 15 investigations are carried out, and more importantly the decisions reached as a result 16 thereof, are discretionary.” (Mot. at 29.) 17 The California Supreme Court has noted “that virtually every public act admits of 18 some element of discretion.” Tarasoff, 17 Cal. 3d 425 at 445. There is a difference 19 “between basic policymaking or planning on the one hand and ministerial or operational 20 levels of decisionmaking on the other hand[.] Perez-Torres v. State of California, 42 Cal. 21 4th 136, 142–143 (2007) (internal quotations omitted). The basic policy decisions 22 warrant immunity while the “subsequent ministerial actions in the implementation of that 23 basic decision still must face case-by-case adjudication on the question of negligence.” 24 Johnson v. State, 69 Cal. 2d 782, 797 (1968). “[G]overnment defendants have the burden 25 of establishing that they are entitled to immunity for an actual policy decision made by an 26 employee who ‘consciously balanc[ed] risks and advantages[.]’” AE ex. rel Hernandez v. 27 Cty. of Tulare, 666 F. 3d 631, 639 (9th Cir. 2012) (second alteration in original) (quoting 28 Johnson v. State of Cal., 69 Cal. 2d 782, 794 n. 8 (1968)). “The fact that an employee 1 normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee 2 did not render a considered decision.” Id. (quoting Johnson, 69 Cal. 2d at 794 n. 8). 3 Accordingly, “[i]t would be odd indeed if a plaintiff included in a Complaint allegations 4 that would establish a basis for finding discretionary act immunity on the part of 5 government defendants.” Id. at 640; see Elton v. Cty. of Orange, 3 Cal. App. 3d 1053, 6 1058 (1970) (explaining that the required showing of balancing the risks and advantages 7 could not have been made by the county at the demurrer stage); Uriarte v. Bostic, No. 8 15cv1606-MMA (PCL), 2017 WL 2312084, at *9, (S.D. Cal. May 26, 2017) (“[T]he 9 Ninth Circuit has indicated that it may be inappropriate for courts to find discretionary act 10 immunity applies at the pleadings stage.”). 11 In this case, Plaintiff’s allegations do not establish that Piedra made a discretionary 12 decision that consciously balanced the risks and benefits of different alternatives. See AE 13 ex. rel Hernandez, 666 F. 3d at 640 (concluding that “the County was not entitled to a 14 dismissal of AE's derivative liability claims on the basis of discretionary act immunity for 15 the allegedly negligent placement and supervision of [a foster child] by [defendant 16 government social workers]”). Plaintiff alleges that Piedra failed to administer a 17 background check (FAC ¶¶ 84, 85, 87, 88) and failed to protect Plaintiff from a 18 foreseeable risk of harm (FAC ¶ 89) but does not allege any facts regarding Piedra’s 19 decision-making. As such, there are no facts upon which the Court can analyze to 20 determine whether Piedra consciously balanced risks and advantages. The Court 21 therefore finds that Defendants have not established that they are entitled to immunity 22 from Plaintiff’s negligent hiring claim at this stage in the proceedings. 23 Based on the foregoing, Defendants’ motion to dismiss Plaintiff’s second cause of 24 action is DENIED. 25 26 27 28 1 C. Seventh and Eighth Causes of Action: Labor Code § 6310 & Labor 2 Code § 1102.5 3 1. Compliance with Cal Gov. Code §§ 910 and 945.4 4 Defendants ask the Court to revisit its earlier ruling holding that Plaintiff 5 adequately stated a claim for violations of Labor Code § 6310 and Labor Code § 1102.5, 6 arguing again that Plaintiff failed to comply with Cal. Gov. Code sections 910 and 945.4 7 before filing this lawsuit. (Mot. at 29-31.) The Court again disagrees. 8 The California Government Code provides that, subject to statutory exceptions 9 inapplicable here, “no suit for money or damages may be brought against a public entity 10 on a cause of action for which a claim is required to be presented [to the public entity] 11 until a written claim therefor has been presented to the public entity....” CAL. GOV. CODE 12 § 945.4. Section 910 prescribes the information that the claim must contain, requiring 13 that the claimant set forth: “(c) The date, place and other circumstances of the occurrence 14 or transaction which gave rise to the claim asserted. [¶] (d) A general description of the ... 15 injury, damage or loss incurred ... [¶] (e) The name or names of the public employee or 16 employees causing the injury ... if known.” CAL. GOV. CODE § 910. 17 According to the California Supreme Court, the purpose of the claim is to present 18 sufficient detail “to reasonably enable the public entity to make an adequate investigation 19 of the merits of the claim and to settle it without the expense of a lawsuit.” City of San 20 Jose, 12 Cal. 3d at 456. “The claim [] need not specify each particular act or omission 21 later proven to have caused the injury.” Stockett v. Ass’n of Cal. Water Agencies Joint 22 Powers Ins. Auth., 34 Cal. 4th 441, 447 (2004). 23 California recognizes the doctrine of “substantial compliance” with respect to the 24 claim presentation requirement. See State v. Superior Court, 32 Cal. 4th 1234, 1245 25 (2004). Under the doctrine of substantial compliance, “two tests shall be applied: [1] Is 26 there some compliance with all of the statutory requirements; and, [2] if so, is this 27 compliance sufficient to constitute substantial compliance.” City of San Jose v. Superior 28 Court, 12 Cal. 3d 447, 456-57 (1974) (emphasis in original). 1 Plaintiff’s claim [Exhibit 4 to FAC] (the “Claim”) satisfies sections 910 and 945.4. 2 The Claim states the date and time of the injury, names the persons he believed 3 responsible (Piedra, Johnson, and Former Director of Human Resources, Teri Brownlee), 4 and generally details the “circumstances” (§ 910, subd. (c)) of Plaintiff’s termination. 5 Specifically, Plaintiff stated that the city failed to conduct a “POST background which 6 would have demonstrated that Chief Johnson had a pattern of retaliating against 7 subordinate employees who have engaged in protected activity exposing Claimant to a 8 foreseeable risk of harm” (Claim at p. 1), that he “had complained of retaliatory adverse 9 employment actions[,] (Claim at p. 3), and that the city failed to remedy the environment 10 proximately causing harm to his career” (Claim at p. 3). These descriptions informed the 11 city that Plaintiff believed he had been retaliated against for engaging in protected 12 activity, notifying the city of the present retaliation causes of action under sections 6310 13 and 1102.4. 14 Defendants argue that Plaintiff’s causes of action are a complete “shift” from the 15 allegations in the Claim because they contain allegations regarding unsafe working 16 conditions, inadequate safety precautions, and violations of safety protocols regarding 17 Covid-19 (FAC ¶¶ 120-121, 128-129) that are not included in the Claim. A complaint 18 should be barred only when there has been a “complete shift in allegations, usually 19 involving an effort to premise civil liability on acts or omissions committed at different 20 times or by different persons than those described in the claim[.]” Stockett, 34 Cal. 4th at 21 447 (citing Blair v. Superior Ct., 218 Cal. App. 3d 221, 226 (Ct. App. 1990)) (emphasis 22 added). When a complaint merely elaborates or adds further detail to a claim but is 23 predicated on the same fundamental actions or failures to act by the defendants, the cause 24 of action should generally not be barred. Id. 25 Plaintiff’s causes of action do not shift liability to other parties nor premise liability 26 on acts committed a different times or places. See Stockett, 34 Cal. 4th at 448; Fall River 27 v. Superior Court, 206 Cal. App. 3d 431, 433-34 (1998). To the contrary, the allegations 28 in the FAC track with what Plaintiff stated in his Claim. The FAC alleges that 1 Defendants were responsible for the harm resulting from the alleged violations (see FAC 2 ¶¶ 120, 122, 129); the Claim named Piedra, Johnson, and El Centro’s HR Director as the 3 persons involved in his alleged injury. The FAC alleges that Defendants “retaliated 4 against [Plaintiff] and discharged him on account of his complaints that Defendants had 5 not followed appropriate officer safety protocols” (FAC ¶ 129; see also ¶ 122 (alleging 6 that he was discharged “on account of his health and safety complaints regarding the lack 7 of officer safety protocols”)); the Claim stated Plaintiff lost his career at the El Centro 8 police department (i.e., discharge) and that he “had complained of retaliatory adverse 9 employment actions [that] the city failed to remedy[.]” The additional specific details in 10 the FAC regarding the health and safety complaints do not constitute a “shift” from the 11 allegations in the Claim—they elaborate on and add further detail to the claim but do not 12 change the original fundamental actions by the Defendants. 13 At bottom, the Plaintiff’s Claim provided El Centro sufficient information to 14 enable it to adequately investigate the claims, which is the purpose of the claim 15 presentation requirements. See City of San Jose, 12 Cal. 3d at 455; Stockett, 34 Cal. 4th 16 at 446. Plaintiff’s Claim specifically stated that he “had complained of retaliatory 17 adverse employment actions” and mentioned that he was exposed to “a foreseeable risk 18 of harm” due to Chief Johnson’s “pattern and practice of retaliating against subordinate 19 employees who engaged in protected activity[.]” These claims of retaliation for engaging 20 in protected activity can reasonably read to encompass the health and safety complaints 21 detailed in the FAC. Any reasonable investigation of Plaintiff’s Claim would have 22 necessarily involved an inquiry into the alleged retaliation and the reasons for the 23 retaliation. Since an inquiry into the alleged retaliation would have involved an 24 investigation into the reasons for the retaliation (at least in part, Plaintiff’s health and 25 safety complaints), Plaintiff’s Claim gave El Centro notice sufficient for it to investigate 26 and evaluate the claims that now form the basis of these causes of action. The Court is 27 persuaded that Plaintiff’s Claim satisfies California’s claim presentment statutes. 28 1 2. Section 6310 Immunity 2 Defendants further challenge Plaintiff’s seventh cause of action on the basis that 3 public entities are immune from such claims. (Mot. at 31.) Defendants’ only cited 4 authority is Donoho v. Cnty. of Sonoma, No. 15-CV-01392-WHO, 2015 WL 3866228 5 (N.D. Cal. June 22, 2015), an unpublished District Court decision. Donoho, in turn, 6 relies on Miklosy v. Regents of Univ. of California, 44 Cal. 4th 876, 188 P.3d 629 (2008), 7 arguing that Miklosy barred section 6310(a) claims against public entities. Other courts 8 have not read Miklosy so broadly. See Creighton v. City of Livingston, 628 F. Supp. 2d 9 1199 (E.D. Cal. 2009); Doe v. Cal. State Senate, Cal. Super LEXIS 31116 (2018) 10 (“While Government Code § 815(a) may prohibit a wrongful termination claim against a 11 public entity … Defendants have not presented any binding legal authority indicating 12 Miklosy has been expanded to preclude a statutory claim against a public entity brough 13 pursuant to § 6310”); see also Sargent v. Bd. of Trustees of California State Univ., 61 14 Cal. App. 5th 658, 665 (2021) (reversing the jury’s decision in part but not disturbing the 15 jury’s findings on section 6310 claim against a public entity). 16 In Creighton v. City of Livingston, the court addressed multiple causes of action 17 against the City of Livingston, a public entity. The plaintiff brought one claim pursuant 18 Cal. Labor. Code § 6310(a) and a separate common law tort claim for wrongful 19 termination in violation of public policy. 628 F. Supp. 2d at 1223-1224. The court 20 ultimately held that Miklosy barred the common law tort claim but, conversely, decided 21 the section 6310(a) claim on its merits. Id. 22 The Court agrees with Creighton’s, Cal. State Senate’s, and Sargent’s reading that 23 Miklosy bars only common law tort liability claims against public entities and allows 24 statutory claims to proceed. The court in Miklosy did not directly address section 6310(a) 25 claims and a plain reading of Miklosy does not preclude statutory claims brought under 26 that section. 27 28 1 3. Sufficiency of the Section 1102.5 Allegations 2 Finally, Defendants assert that Plaintiff’s eighth cause of action fails because 3 Plaintiff’s complaint does not satisfy Cal. Labor Code § 1102.5. (Mot. at 31.) 4 Defendants assert that Plaintiff was required to provide a specific rule or regulation that 5 he believed Defendants were in violation of and Plaintiff failed to do so. (Id.) 6 Under section 1102.5, an employer may not retaliate against an employee when the 7 employee reports information and has reasonable cause to believe that the information 8 discloses a violation of state or federal statute or of a local, state, or federal rule or 9 regulation, regardless of whether disclosing the information is part of the employee's job 10 duties. Killgore v. SpecPro Professional Services, LLC, 51 F. 4th 973, 986 (9th Cir. 11 2022). “[T]he employee must be able to point to some legal foundation for his 12 suspicion—some statute, rule or regulation which may have been violated by the conduct 13 he disclosed.” Ross v. County of Riverside, 36 Cal. App. 5th. 580, 592 (2019) (quoting 14 Fitzgerald v. El Dorado County, 94 F. Supp. 3d 1155, 1172 (E.D. Cal. 2015). 15 Plaintiff states that he was “whistleblowing” because he believed El Centro was 16 not following CDC regulations with regards to COVID-19 safety and N-95 masks. (FAC 17 ¶ 128.) The relevant question therefore is whether “CDC regulations” qualifies as a 18 “state or federal statute or of a local, state, or federal rule or regulation” and thus satisfies 19 the requirements of Cal. Labor Code § 1102.5. 20 In Rodriguez v. Lab'y Corp. of Am., No. CV2100399MWFJCX, 2022 WL 4597420 21 (C.D. Cal. Aug. 25, 2022), a Central District of California court agreed that complaints 22 about failing to follow “CDC regulations” were sufficient to form the basis of a 1102.5 23 claim. In Rodriguez, the court considered a section 1102.5 claim on a motion for 24 summary judgment. Id. The basis of that claim was a workplace complaint in which the 25 employee was concerned that CDC regulations were not being followed. Id. Although 26 the claim failed on other grounds, the court’s consideration of the motion for summary 27 judgment tacitly declared that CDC regulations qualify as “local, state, or federal rules or 28 regulations” sufficient to form the basis of a section 1102.5 claim. 1 The Court agrees with that assessment. The statute does not state that a plaintiff is 2 required to name a specific statute or regulation and Defendants cite no authority to 3 support that stringent reading of section 1102.5. 4 For the reasons stated above, the Court DENIES Defendants’ motion to dismiss as 5 to the seventh and eighth causes of action. 6 D. Ninth Cause of Action: Violation of 42 U.S.C. § 1983 First Amendment 7 Retaliation 8 In the Court’s prior order, the Court dismissed Plaintiff’s 42 U.S.C. § 1983 First 9 Amendment Retaliation claim against El Centro because Plaintiff failed to allege 10 sufficient facts as to “Piedra’s or Johnson’s final policy-making authority,” and “whether 11 Piedra had actual knowledge of the alleged violation of constitutional rights or whether 12 Piedra ‘approve[d] the subordinate’s decision and the basis for it.’” (Order on First Mot. 13 to Dismiss [Doc. 18]). In the FAC, Plaintiff adds new allegations, which it avers contain 14 the necessary facts to satisfy the requirements for a claim under Monell liability. (See 15 FAC ¶¶ 132-145). Defendants argue that Plaintiff’s new allegations still fail to state a 16 claim for § 1983 First Amendment Retaliation against El Centro and Piedra. (Mot. at 32.) 17 1. El Centro’s Monell Liability 18 Defendants contend El Centro is not liable under a Monell theory because she did 19 not have final policymaking authority over personnel decisions. Monell liability can be 20 demonstrated through “decisions of a final policy-making official who commits the 21 federal law violation himself or ratifies the unlawful act of a delegate.” Lytle v. Carl, 382 22 F. 3d 978, 986 (9th Cir. 2004). A plaintiff must establish that a municipal employee 23 bearing “final policy-making” authority ratified the violation of the plaintiff’s 24 constitutional rights with actual knowledge of the violation. Christie v. Iopa, 176 F. 3d. 25 1231, 1239 (9th Cir. 1999). 26 “Whether a particular official has final policy-making authority is a question of 27 state law,” determined by the judge, not the jury. Gillette v. Delmore, 979 F.2d 1342, 28 1 1346 (9th Cir. 1992). The court must first “identify the particular area or issue for which 2 the official is alleged to be the final policymaker.” Cortez v. Cty. of Los Angeles, 294 F. 3 3d 1186, 1189 (9th Cir. 2002) (citing McMillian v. Monroe Cty., 520 U.S. 781, 785 4 (1997)). Next, the court must “analyze state law to discern the official's actual function 5 with respect to that particular area or issue.” Id. Courts consider whether the official’s 6 discretionary decisions are “constrained by policies not of that official’s making” and 7 whether the official’s decisions are ‘subject to review by the municipality’s authorized 8 policymakers.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); see also 9 Christie, 176 F. 3d at 1237. Courts look to applicable state laws and regulations to 10 determine if the defendant is a final policymaker. See Lytle, 382 F. 3d 978; Ellins v. City 11 of Sierra Madre, 710 F. 3d 1049, 1066 (9th Cir. 2013). In the Ninth Circuit, “local 12 ordinances and regulations” can establish that a city manager “possesses final 13 policymaking authority over police employment decisions.” Ellins v. City of Sierra 14 Madre, 710 F. 3d 1049, 1066 (9th Cir. 2013). 15 Defendants argue that the City Council, not Piedra, had final policymaking 16 authority under the El Centro City Charter3 and that Piedra was merely exercising 17 discretion within the confines of the City Council’s authority. (Mot. at 33-34.) 18 Defendants contend that “the determination of who is a municipal policymaker is a 19 question of law, which is determined by the City’s Charter.” (Mot. at 33.) The City 20 Charter states that the “City Council will establish the policy of the City and the City 21 Manager will carry out that policy.” (City Charter, Article 2, Form of Government.) 22 Plaintiff’s response is that Piedra’s policymaking authority lies within the non- 23 limiting enumerated powers of the City Manager granted by El Centro Municipal Code 24 sections 2-53, 2-56, 2-57, 2-81 and 2-82. (Opp. to Mot. at 18.) Plaintiff argues that 25 Piedra was the final policymaker over city personnel because the enumerated powers of 26
27 3 The Court grants Defendants’ Request for Judicial Notice filed concurrently with the Motion and 28 hereby takes judicial notice of the City Charter, attached as Exhibit 1 to the Request for Judicial Notice. 1 the City Manager give Piedra the authority to “control, order, and give directions to all 2 heads of departments and to subordinate officers and employees of the City,” and 3 “appoint, discipline, remove, promote and demote any and all officers and employees of 4 the City[.]” (FAC ¶ 133; see El Centro Mun. Code § 2-82.) Additionally, the City 5 Manager serves as the Chief Executive Officer advisor on policy, is responsible for 6 serving as “Ex Officio Personnel Officer,” prepares personnel rules and policies, and 7 oversees appointments and separation of employment. (Opp. to Mot. at 17; see El Centro 8 Mun. Code § 2-53, 2-56, 2-57.) 9 Plaintiff argues that these ordinances are nearly identical to the ordinances in Ellins 10 v. City of Sierra Madre, which “establish[ed] that [the] city manager…possesse[d] final 11 policymaking authority over police employment decisions.” Ellins, 710 F. 3d at 1066. In 12 Ellins, the city enacted municipal codes delegating to the City Manager the “authority to 13 control, order, and give directions to all heads of departments and to subordinate officers 14 and employees of the city” and giving the City Manager the power to “appoint, 15 discipline, remove, promote, and demote any and all officers and employees of the city 16 except the city clerk, city treasurer, or city attorney[.]” 710 F. 3d at 1066. These 17 provisions were reinforced by charging the city manager with administering the city’s 18 personnel rules. Id. The provisions here are the same. Just like the city manager in 19 Ellins, Piedra was granted the authority to “control” all officers and employees of the city 20 and the power to “appoint, discipline, and remove” all officers and employees of the city 21 (with some exceptions not applicable here). See El Centro Mun. Code § 2-82. 22 Defendants do not point to any policy limitations on these powers or any 23 provisions stating these powers were subject to review by the City Council. Defendants 24 contend that, while Section 2-82 of the Code enumerates to the city manager a number of 25 powers and duties in addition to their status as head of the City government, it does not 26 specify the authority to make policy. (Mot. at 33:5-6.) However, because Section 2-82 27 of the Code explicitly states that these enumerated powers do not serve as a limitation on 28 the city manager’s authority and duties, this argument is not convincing. In other words, 1 Section 2-82 granted powers without “constrain[ing] ]the powers] [with] policies not of” 2 the City Manager’s making. See Praprotnik, 485 U.S. at 127. Moreover, the Court is 3 not aware of anything indicating that Piedra’s personnel decisions were, indeed, reviewed 4 by the City Council. Piedra had the authority to determine when and how employees 5 would be disciplined or removed, which is the City’s personnel policy; she was making 6 decisions without limits or confines on her authority, which means these decisions were 7 not merely discretionary. Taken together, this establishes that the Piedra had final 8 policymaking authority of the personnel decisions at issue in this case. 9 The case cited by Defendants, Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 10 1992), does not support Defendants’ position. Addressing the question of a fire chief’s 11 authority over the city’s employment policy, the Gillette court found that the fire chief’s 12 authority to hire and fire employees was merely “discretionary” because it was limited by 13 the applicable municipal law (the city charter and city ordinances) giving policymaking 14 authority to the city manager and city council. 979 F.2d at 1348. Here, on the issue of 15 authority over city personnel, there is no applicable municipal law suggesting that 16 Piedra’s authority was limited or subject to review in any way. The only thing that could 17 possibly be interpreted as limiting Piedra’s authority in this case is the City Charter’s 18 reference to the City Council making policy, which Defendants argue is analogous to the 19 “applicable municipal law” in Gillette. But this argument ignores the El Centro 20 Municipal Code and suggests that a single, general reference to “policy” forecloses the 21 question of final policymaking authority over the specific area at issue in this case. The 22 Court elects to include the municipal code in its analysis and does not agree that the City 23 Charter grants policymaking authority over personnel policy. The City Charter’s broad 24 reference to “policy” did not constrain Piedra’s authority or operate as a limitation in any 25 way. Even if the Court agreed that the City Charter provision does grant the City Council 26 policymaking authority over personnel, the Court would find that the City Council 27 delegated this policymaking authority to the City Manager when it enacted the municipal 28 codes without any limits or guidance within which the City Manager had to operate. 1 For the reasons stated above, the Court finds that Piedra was the final policymaker 2 over city personnel. 3 2. First Amendment Claim Against Piedra 4 Defendants also argue that the First Amendment claim fails because Plaintiff did 5 not speak on a “matter of public concern.” In evaluating a public employee’s First 6 Amendment retaliation claim, the Ninth Circuit “uses a sequential five-step series of 7 questions… (1) whether the plaintiff spoke on a matter of public concern; (2) whether the 8 plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's 9 protected speech was a substantial or motivating factor in the adverse employment action; 10 (4) whether the state had an adequate justification for treating the employee differently 11 from other members of the general public; and (5) whether the state would have taken the 12 adverse employment action even absent the protected speech.” Gibson v. Off. of Atty. 13 Gen., State of California, 561 F. 3d 920, 925 (9th Cir. 2009) (quoting Eng v. Cooley, 552 14 F. 3d 1062, 1070 (9th Cir. 2009)). Defendants’ only argument is that Plaintiff did not 15 speak on a matter of public concern, so the Court will address only that element. 16 Speech involves a matter of public concern when, “based on the content, form, and 17 context of a given statement,” it relates to “any matter of political, social, or other 18 concern to the community.” Desrochers v. City of San Bernardino, 572 F. 3d 703, 709 19 (9th Cir. 2009) (internal quotations and citations omitted); Connick v. Myers, 461 U.S. 20 138, 146 (1983). The Ninth Circuit has “not articulated a precise definition of public 21 concern.” Desrochers, 572 F. 3d at 709 (internal quotations and citations omitted). 22 However, “[t]his circuit and other courts have defined public concern speech broadly to 23 include almost any matter other than speech that relates to internal power struggles within 24 the workplace.” Tucker v. State of Cal. Dep't of Educ., 97 F. 3d 1204, 1210 (9th Cir. 25 1996) (emphasis in original). Whether speech involves a matter of public concern is 26 purely a matter of law. Gibson, 561 F. 3d at 925 (citations omitted). The plaintiff “bears 27 the burden of showing that the speech addressed an issue of public concern,” Eng, 552 F. 28 1 3d at 1070, based on “the content, form, and context of a given statement, as revealed by 2 the whole record[.]” Connick, 461 U.S. at 147–48. 3 a) Content 4 “First and foremost, we consider the content of the speech[.]” Weeks v. Bayer, 246 5 F. 3d 1231, 1234 (9th Cir. 2001). “[T]o address a matter of public concern, the content of 6 the… speech must involve ‘issues about which information is needed or appropriate to 7 enable the members of society to make informed decisions about the operation of their 8 government.’” Desrochers, 572 F. 3d at 710 (citations omitted). 9 Plaintiff argues that he was engaged in protected speech related to matters of 10 public concern by reporting Johnson was discriminating against women, and that Johnson 11 and police management failed to protect the health and safety of its officers due to its 12 insufficient COVID-19 protocols. (Opp. at 20.) Plaintiff also contends that he was 13 berated and humiliated by Johnson’s loud, inappropriate, and vulgar language. (FAC ¶ 14 25.) 15 When speech “relates to internal power struggles within the workplace,” it 16 generally does not rise to the level of public concern. Tucker, 97 F. 3d at 1210. In 17 Desrochers, two members of the San Bernardino Police Department filed suit against the 18 city under 42 U.S.C. § 1983 after one officer was transferred and the other was subjected 19 to a disciplinary action. 572 F. 3d at 703. The court affirmed the district court’s grant of 20 summary judgment, reasoning the officers’ complaints, which mentioned the 21 competency, preparedness, efficiency, and morale of the police department, did not 22 address a matter of public concern because “a simple reference to government 23 functioning [does not] automatically qualif[y] as speech on a matter of public concern.” 24 Id. at 710-711. Some of Plaintiff’s complaints here—his complaints of Johnson’s choice 25 of language—involve a private matter because they merely expressed dissatisfaction with 26 Johnson’s management style. See Desrochers, 572 F. 3d at 713-714. 27 28 1 But our analysis does not conclude simply because some of Plaintiff’s complaints 2 involve private matters. In Robinson v. York, a police sergeant filed suit against El 3 Centro and several of its officers alleging a civil rights complaint under 42 U.S.C. § 1983 4 after he was denied a promotion because he reported department misconduct. 566 F. 3d 5 817, 820 (9th Cir. 2009). The court analyzed each of the plaintiff’s reports, finding that 6 some “clearly addressed” matters of public concern—such as police misconduct, whether 7 the misconduct was being investigated, and the plaintiff’s testimony in a class action 8 against the county—while others “addressed individual personnel disputes, not matters of 9 public concern.” Id. at 823. 10 Additionally, in McKinley v. City of Eloy, a police officer publicly criticized the 11 city’s decision not to give its officers an annual raise. 705 F. 2d 1110, 1112 (9th Cir. 12 1983). The police officer then filed suit against his employer, a police department, for 13 violating 42 U.S.C. § 1983 after he was fired. Id. Though the court acknowledged that 14 compensation rates may be an internal issue, the court nevertheless found that the 15 plaintiff’s speech was protected, reasoning that “compensation levels undoubtedly affect 16 the ability of the city to attract and retain qualified police personnel, and the competency 17 of the police force is surely a matter of great public concern.” Id. at 1114. 18 Here, similar to Robinson and McKinley, Plaintiff’s complaints concern both 19 public and private matters. The COVID-19 protocols implemented by the police 20 department that resulted in the death of an officer certainly involves an issue “about 21 which information is needed or appropriate to enable the members of society to make 22 informed decisions about the operation of their government.” Desrochers, 572 F. 3d at 23 710 (citations omitted). Unlike the claims in Desrochers, which primarily concerned 24 police department morale and efficiency, Plaintiff’s speech rises to a level beyond “a 25 simple reference to government functioning” because it implicates the physical safety of 26 police officers. Additionally, whether Johnson, as chief of police, discriminates against 27 women certainly has “wider societal implications,” Desrochers, 572 F. 3d at 717 (quoting 28 Roe v. City and County of San Francisco, 109 F. 3d 578, 586 (9th Cir. 1997)) and 1 involves more than a “passing reference[] to public safety, incidental to the message 2 conveyed.” Id. at 711. 3 Citing to Exhibit 4 to the FAC, Defendants argue that Plaintiff did not report any 4 improper treatment of female employees nor of a failure to implement proper COVID-19 5 procedures. Defendants are correct that Exhibit 4 does not include specific reference 6 insufficient COVID-19 protocol in his external reports. But in Plaintiff’s first three 7 exhibits, he does allege retaliation based on his previous reports of discrimination and 8 harassment. Moreover, the FAC indicates that when Plaintiff formally placed his written 9 complaints with the Director of Human Resources, he included the retaliation claims 10 based both on his previous reports of Johnson’s conduct as well as his concerns over 11 officer safety violations that contributed to an officer’s death. (FAC ¶ 49.) 12 Because the speech at issue involved conduct that would guide the general public’s 13 opinion of how their police department functions, this portion of the Connick test 14 supports a finding of public concern. 15 b) Form 16 Turning to the form of the speech, whether the speech was made publicly is a 17 factor this Court must consider—though it is not dispositive. See Garcetti v. Ceballos, 18 547 U.S. 410, 420 (2006) (“[t]hat [plaintiff] expressed his views inside his office, rather 19 than publicly, is not dispositive.”). 20 The Ninth Circuit has recognized that “[i]n a close case, when the subject matter of 21 a statement is only marginally related to issues of public concern, the fact that it was 22 made … to co-workers rather than to the press may lead the court to conclude that the 23 statement does not substantially involve a matter of public concern.” Johnson v. 24 Multonmah County, Or., 48 F. 3d 420 (9th Cir. 1995). 25 However, the Ninth Circuit has also recognized “[i]n the context of ‘good-faith 26 whistleblowing’ involving reports within a government department rather than to the 27 public, the breadth of one's audience is irrelevant because it would be absurd to extend 28 First Amendment protection only to those whistleblowers who immediately appear on the 1 local news.” Robinson, 566 F. 3d at 824 (quoting Hufford v. McEnaney, 249 F. 3d 1142, 2 1150 (9th Cir. 2001)) (internal quotations omitted). 3 Plaintiff contends he filed several complaints regarding retaliation internally, as 4 well as externally with the Department of Fair Employment and Housing, and Labor 5 Commission. (Opp. at 20.) Plaintiff’s complaints were never explicitly made public, and 6 the Department of Fair Employment and Housing declined to investigate the claims due 7 to insufficient evidence. 8 Defendants argue that Plaintiff’s complaints did not relate to a matter of public 9 concern because, though they involved discrimination against female employees and 10 command staff failure to follow proper procedures to protect high-risk officers from 11 COVID-19, the complaints were made within the confines of Plaintiff’s employment. 12 (Mot. at 35.) In making this argument, Defendants seem to acknowledge that the content 13 matter of Plaintiff’s allegations rise to the level of a matter of public concern, and instead 14 focus on the form of the complaints, and the limited audience they received. As the 15 Supreme Court stated in Garcetti, that a plaintiff’s speech is not directly made to the 16 public is not dispositive in determining whether the speech was made pursuant to a matter 17 of public interest. See Garcetti, 547 U.S. at 420. 18 Here, though Plaintiff’s complaints were primarily made internally, the complaints 19 at issue were formally made to the Director of Human Resources, as opposed to the 20 remark made to a co-worker in Johnson. Additionally, by filing multiple complaints with 21 external State of California departments, Plaintiff did not confine his complaints solely to 22 an internal setting. As such, this prong of the Connick test also supports a finding of 23 public concern. 24 c) Context 25 The final consideration in determining whether speech relates to a matter of public 26 concern involves a contextual inquiry. “In other words, why did the employee speak 27 …?” Desrochers, 572 F. 3d at 715. In doing so, the Ninth Circuit has looked at whether 28 1 the plaintiffs’ speech had “altruistic motivation,” or if it was motivated by “a personal 2 vendetta.” Id. 3 The Ninth Circuit has recognized that reports involving internal personnel matters 4 can still be protected by the First Amendment if they pertain to the discriminatory 5 treatment of colleagues. See Robinson, 566 F. 3d at 823 (explaining that “[r]eports 6 pertaining to others, even if they concern personnel matters including discriminatory 7 conduct, can still be ‘protected under the public concern test’”); see also Cochran v. City 8 of Los Angeles, 222 F. 3d 1195, 1207 (9th Cir. 2000) (holding that two police sergeants’ 9 speech was a matter of public concern even though it “focused on one employee and not 10 addressed directly to the public,” because it involved “matters which are relevant to the 11 public’s evaluation of its police department.”). 12 In Desrochers, the plaintiffs’ allegations contended that their superior was 13 “controlling,” “critical,” and “manipulative.” The court concluded that, while there 14 appeared to be some altruistic motive behind the complaints, the plaintiffs ultimately 15 “were motivated by their dissatisfaction with their employment situation brought on by a 16 difference of personalities.” 572 F. 3d at 715. The court reasoned that the “ultimate 17 source of the grievances can be traced to the simple fact that the [parties] did not get 18 along.” Id. at 716. 19 Here, Plaintiff’s complaints regarding the treatment of female employees as well as 20 his concern over individuals at high-risk of contracting serious COVID-19 complications 21 were inherently altruistic. Plaintiff also contends that at least two people quit as a result 22 of Johnson’s behavior—Executive Commander Alvaro Ramirez and the Director of 23 Human Resources. As in Robinson and Cochran, Plaintiff’s speech addresses the 24 disparate treatment of his colleagues, which has been recognized as relevant to the 25 public’s evaluation of its police department. 26 The context in Desrochers is distinguishable based on the gravity of the 27 allegations. Here, the FAC shows Plaintiff and Johnson initially got along. (FAC ¶ 22.) 28 As time passed, and, notably, after Plaintiff had made comments to Johnson regarding his 1 || treatment of the female staff, Plaintiff complained of feeling accosted, attacked, 2 || discredited, and isolated in the workplace. Plaintiff further contends that Johnson 3 || interfered with and generated false investigations against Plaintiff. These allegations are 4 ||more serious and have less to do with differences in personalities than the allegations at 5 issue in Desrochers. Because the context of Plaintiff's speech is attributable to altruistic 6 || motives and not mere “dissatisfaction with [his] employment situation,” this portion of 7 Connick test supports a finding of public concern. 8 Based on the content, form, and context of Plaintiff's speech, the Court concludes 9 || that Plaintiff has met his burden to demonstrate that the speech at issue related to a matter 10 || of public concern. Defendants’ motion to dismiss the ninth cause of action is DENIED. 11 12 CONCLUSION & ORDER 13 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss 14 || [Doc. 27] as to the first cause of action WITHOUT LEAVE TO AMEND and DENIES 15 motion as to the other causes of action. 16 IT IS SO ORDERED. 17 || Dated: February 8, 2023 18 \ 19 [pe Lor 20 Hn. 1 omas J. Whelan United States District Judge 22 23 24 25 26 27 28 26