Richter v. Ausmus

Opinion

JULIA RICHTER, Case No. 19-cv-08300-WHO

Plaintiff, ORDER TO STAY THE ACTION, v. DENY IN PART THE MOTION FOR LEAVE TO AMEND, AND DENY THE LISA AUSMUS, et al., MOTION FOR SANCTIONS Defendants. Re: Dkt. Nos. 79, 95, 101, 105, 109

Defendants Katano Kasaine, Steven Falk, the City of Oakland, Lisa Ausmus, Todd Mork, Sekou Millington, Anne Kirkpatrick, Nishant Joshi, Darren Allison, Falk, and Gregory Stanfield (collectively, “Defendants”) move to dismiss plaintiff Julia Richter’s Fourth Amended Complaint (“FAC”). Richter opposes and moves for leave to file a Fifth Amended Complaint as well as for sanctions against Stanfield and his counsel. Richter has appealed the cancellation of her industrial disability retirement application and her hearing before the Office of Administrative Hearings is set for August 30, 2021 (“Hearing). For the reasons explained below, I sua sponte STAY this case pending the final determination of the Hearing. Defendants’ motions to dismiss are STAYED. Richter’s motion for leave to amend is DENIED, except for Richter’s request to amend her equal protection claim, which is STAYED. Richter’s motion for sanctions is DENIED. The facts of this case are discussed in detail in my prior Order. See Dkt. No. 28. Richter, a former employee of the Oakland Police Department (“OPD”), alleges two primary sources of misconduct on the part of the Defendants. First, she alleges that she was injured on May 14, 2018 indifference and violation of safety rules. Dkt. No. 76 (“Fourth Amended Complaint” or “FAC”) ¶¶ 30, 38. Second, she asserts that she was subject to a wrongful investigation in order to prevent her from obtaining disability retirement benefits, which ultimately resulted in her termination. Id. ¶ 32. At the time Richter initially filed this action, she had not yet been terminated and her disability benefits application was still pending. Then on or about April 20, 2020, Richter received a letter from defendant Falk, the City Administrator for Oakland, notifying her that she had been terminated as of March 28, 2020. Id. ¶ 40. A few weeks later, in May 2020, she received a letter from defendant Keith Riddle, the Chief for the Disability and Survivor Benefits Division at CalPERS, notifying her that her application for disability retirement benefits could not be accepted because she had been terminated for cause. Dkt. No. 76-7 (“FAC, Ex. 8”). Richter appealed the denial of her disability retirement benefits and her hearing before the Office of Administrative Hearings (“OAH”) is set for August 30, 2021 (“Hearing”). Dkt. No. 105 at 4–5. The procedural history is discussed in detail in my prior Order. Dkt. No. 74. Richter filed her initial Complaint in this case on December 19, 2019. See Dkt. No. 1. In total Richter has filed four amended complaints and now moves for leave to amend her complaint a fifth time. See Dkt. No. 79. On February 16, 2021, I granted Richter leave to file a revised complaint limited to claims one, four, twenty-six, and claim three’s disability discrimination theory of her proposed Fourth Amended Complaint.1 Dkt. No. 74; see Dkt. No. 69 (“Proposed FAC”). In my prior Order, I instructed Richter to limit her revised complaint to only the defendants named in these four claims and ordered that all other defendants or proposed defendants were dismissed with prejudice.2 Id. at 27. 1 In her Proposed FAC, claim one asserted a due process violation resulting from the denial of her application for disability benefits. Proposed FAC at 5. Claim three was a deprivation of equal protection claim in violation of the Fourteenth Amendment. Id. at 20. Claim four alleged a § 1983 violation of the Fifth or Fourteenth Amendment Takings Clause resulting in the deprivation of the constitutionally protected right to disability pension. Id. at 22. Claim twenty-six invoked CAL. GOV. CODE § 1094.5 to set aside an unlawful administrative action. Id. at 45.

2 Richter alleged claim one of her Proposed FAC against Katano Kasaine, Steven Falk, Greg On March 3, 2021, Richter filed a Fourth Amended Complaint (“FAC”) that complies with my prior Order. Dkt. No. 76. On March 16, 2021, Richter filed a motion for leave to file a fifth amended complaint and a proposed Fifth Amended Complaint (“Fifth AC”) with 15 claims, only one of which is a new claim. Dkt. Nos. 79, 80. Defendants Ausmus, Gilbert, Hubbard, Kirkpatrick, Millington, and Mork oppose Richter’s motion for leave to amend. Dkt. No. 87. On April 14, 2021, Defendants Allison, Ausmus, Joshi, Kirkpatrick, Millington, and Mork also filed a motion to dismiss Richter’s FAC. Dkt. No. 95. On April 23, 2021, Defendants Falk, Kasaine, and the City filed their motion to dismiss Richter’s FAC. Dkt. No. 101. Defendant Stanfield also filed a motion to dismiss Richter’s FAC. Dkt. No. 105. Defendants Trinh, Jenkins, Byrd-Salas, and Riddle have not responded to the FAC. Richter did not serve Gilbert and Hubbard with the FAC as they are not named in it. See FAC; see Dkt. Nos. 83, 85, 86. Richter opposes these motions to dismiss and also moves for sanctions against Stanfield and his counsel. See Dkt. Nos. 106, 107, 109. A court may stay proceedings as part of its inherent power “to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (explaining that the court need not find that two cases possess identical issues; substantially similar issues is sufficient to support a stay). The inherent power to stay includes ordering a stay “pending resolution of independent proceedings which bear upon the case.” Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979). In determining whether to stay a case, “the competing interests which will be affected . . . must be weighed.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005). These interests include: “(1) the possible damage which may result from the granting of a stay, (2) the hardship or

Todd Mork, Sekou Millington, Anne Kirkpatrick, Nishant Joshi, Darren Allison, Falk, and the City of Oakland. Id. at 20. Claim four named Kasaine, Falk, Stanfield, Trinh, Jenkins, Byrd-Salas, Riddle, and the City of Oakland. Id. at 22. Claim twenty-six named Damon Gilbert inequity which a party may suffer in being required to go forward, and (3) the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.” Id. Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). This standard is not akin to a probability requirement, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Where a plaintiff is proceeding pro se, the Court has an obligation to construe the pleadings liberally and to afford the plaintiff the benefit of any doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, pro se pleadings must still allege facts sufficient to allow a reviewing court to determine whether a claim has been stated. Ivey v. Bd. Of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). For the first time in this case, the parties have brought up the fact that Richter appealed disability retirement (“IDR”) application. Her hearing before the Office of Administrative Hearings is set for August 30, 2021. In light of this Hearing and because all of Richter’s four surviving claims depend on a denial of benefits, I sua sponte stay this case pending a final determination from the OAH on CalPERS’s denial of Richter’s disability retirement benefits. The Hearing and this case involve substantially similar issues—e.g., whether Richter is entitled to disability retirement benefits. The Hearing is only a month away and therefore the damage and/or hardship from staying the case is minimal. Importantly, because a majority of Richter’s claims depend on a final determination about whether she can receive disability benefits, staying the case would simplify the issues and questions of law.3 Accordingly, I sua sponte stay this case. See Flattum v. California Dep't of Consumer Affs., 2012 WL 2839836, at *1 (E.D. Cal. July 9, 2012) (staying the district court case until the court receives notice that plaintiff’s hearing with the Office of Administrative Hearings has concluded). Defendants move to dismiss Richter’s FAC, which alleges a procedural due process claim, an equal protection claim, a takings clause claim, and an unlawful administrative action claim. Richter’s claims against individuals appear conclusory and speculative, except for the possibility of claims against individuals in their official capacity. But because all of the claims depend on a final determination at the Hearing, I conclude that these claims should be STAYED pending the decision from the Hearing. A. First Cause of Action: § 1983 Fourteenth Amendment Due Process Right to Industrial Disability Retirement Under her first claim of relief, Richter alleges a procedural due process violation resulting from the denial of her application for disability benefits. FAC ¶¶ 37–68. “A procedural due process claim has two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) denial of adequate procedural protections.” Fed. Home Loan Mortg. Corp.,

3 If for any reason Richter decides not to participate in the Hearing, as she threatened she might 893 F.3d 1136 (9th Cir. 2018). Defendants Falk, Kasaine, and the City move to dismiss Richter’s first claim because Richter failed to appeal the denial of her benefits and therefore is precluded from challenging her dismissal in this case, where her dismissal was unrelated to her physical condition. Dkt. No. 101 at 3. But the case on which Falk, Kasaine, and the City rely may be distinguishable. In Smith v. City of Napa, 120 Cal.App.4th 194, 198 (2004), the court concluded that the plaintiff’s dismissal for cause extinguished his right to a disability retirement because the plaintiff had filed his application for a disability retirement on the effective date of his dismissal and under Haywood “a dismissal for good cause unrelated to a medical disability disqualifies an employee for a disability retirement.” Id. at 204. The court, however, emphasized the “oft-repeated qualification” in Haywood: the ruling “does not apply to a dismissal that ‘preempts’ an otherwise valid claim for disability retirement” and the exception “does not refer only to a dismissal intended to thwart a claim for disability retirement, because a dismissal for cause cannot defeat an employee’s matured right to a disability retirement antedating the event providing cause for the dismissal.” Id. at 198 (emphasis in original). As I explained in my prior Order, Richter’s allegations support a plausible inference that she had a vested right in her disability benefits. Dkt. No. 74 at 6–7. “[Richter] alleged a near two-year delay between the initial filing of her application for disability benefits and the ultimate denial. See e.g. FAC ¶ 164. She alleged that defendant Kasaine misled her regarding why her application was delayed in order to convince her to sign two time-waiver forms, an allegation that suggests some deceit by defendants. Id. ¶¶ 50–51. She also alleged that her attorney received a tip from an Oakland employee, informing her that “the City wants to terminate Julia so that the City of Oakland would not have to pay her disability retirement.” Id. ¶ 163. These allegations support an inference that the City of Oakland took wrongful and preemptive steps to terminate Richter to avoid paying her disability benefits, and may be able to rebut the presumption that Richter’s benefits did not vest.”

Id. Consequently, these allegations may be sufficient to support a claim of inadequate process against Defendants. Id. at 7. At the time of my prior order, I was unaware of Richter’s appeal. Because Richter’s Hearing is not until August 30, 2021, she has failed to establish that she was denied due process to any vested property rights. See Dkt. No. 105 at 8. If the Hearing occurs and has sufficient elements of due process, then it would seem that Richter will have been afforded adequate process. Furthermore, if the outcome of the Hearing is that Richter is entitled to disability retirement benefits then she will not be able to allege that she was deprived of a constitutionally protected liberty or property interest. At the moment, it is unclear whether Richter has a plausible procedural due process claim. B. Second Cause of Action: Deprivation of Equal Protection in Violation of the Fourteenth Amendment Richter also alleges an equal protection claim—that she was discriminated against because of her disability. FAC ¶¶ 69–115. Richter’s FAC fails to allege any facts about being treated differently because of her disability even though Richter had factual allegations in prior versions of her complaint. Regardless, Richter adds these facts back in to her Fifth AC. See Dkt. No. 80. The first question then is whether to grant Richter leave to add these facts back into her equal protection claim. In her Fifth AC, Richter alleges Ausmus, Mork, Millington, Kirkpatrick, Joshi, Allison, and Falk, as the City’s investigative unit, treated Richter differently from other citizens OPD investigated on suspicion of criminal activity. Dkt. No. 80 ¶ 76. After Ausmus, Mork, Millington, Kirkpatrick and the City “became aware of [her] permanent work injury and her intent to apply for disability retirement, they began scrutinizing her in an apparent attempt to disallow her disability claim.” Id. ¶ 111. For example, one defendant—who Richter only identifies as “Doe”—referred Richter “for an internal investigation for allegedly missing property, while her non-disabled coworker was not investigated.” Id. Richter also alleges that in March 2019, her attorney “received a tip from an Oakland city employee . . . that the City wants to terminate Julia so that the City of Oakland would not have to pay her disability retirement.” Id. ¶ 112. These factual allegations seem conclusory and speculative against the named Defendants. Although Richter alleges that Ausmus, Mork, Millington, Kirkpatrick, Joshi, Allison, and Falk were all part of the City’s investigative unit, Richter does not specify who referred her for internal or Kasaine were a part of this internal investigation at all. Notwithstanding the pleading issues, because it is unclear what effect the OAH Hearing will have on Richter’s equal protection claim, I will defer the question of whether to grant Richter leave to add these missing facts to her equal protection claim. The second question is whether to grant Defendants Falk, Kasaine, the City, Ausmus, Mork, Millington, Allison, Joshi, Kirkpatrick, and Stanfield’s motions to dismiss Richter’s equal protection claim. See Dkt. No. 95 at 2–3; Dkt. No. 101 at 3–4; Dkt. No. 105 at 8–9. Defendants assert that Richter fails to allege any facts in her FAC that she was discriminated against because of her disability or that she was treated differently because of her disability. See Dkt. No. 95 at 2–3; Dkt. No. 105 at 8–9. Defendants are correct that the factual allegations are missing from the

FAC. Further, the factual allegations in the proposed Fifth AC seem conclusory and speculative. But again, because of the pending OAH Hearing, I will STAY Defendants’ motions to dismiss Richter’s equal protection claim. C. Third Cause of Action: § 1983 Unlawful Taking of Disability Pension in Violation of Fifth and Fourteenth Amendments Richter alleges a property interest in her pension benefits and asserts that defendants Falk, Kasaine, the City, and Stanfield violated the Fifth Amendment Takings Clause because she was denied disability retirement benefits. FAC ¶¶ 116–24. The Takings Clause states, “Nor shall private property be taken for public use, without just compensation.” U.S. Const. Amend. V. The purpose of the takings clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). Defendants Falk, Kasaine, the City, and Stanfield assert that because Richter’s “rights to a disability retirement have not vested because her application could not be processed, Richter does not have a claim under the Takings Clause.” Dkt. No. 101 at 4–5; Dkt. No. 105 at 9. Defendants point to Quintana v. Board of Administration, 54 Cal.App. 3d 1018, 1022 (1976), that found “in one sense that [the] right [to pension payments] is not ‘vested’ until the disability is established in “Richter has at least a plausible argument under Smith and Haywood . . . that her rights to disability benefits vested prior to her termination. She has also alleged a taking of her property – the withholding of her disability benefits. Richter has therefore alleged both a property interest and a taking of that property.” Dkt. No. 74 at 12. But because the final determination regarding her disability benefits has not yet occurred, I cannot conclude that Richter has a plausible claim at this time against the named Defendants. D. Fourth Cause of Action: CAL. GOV. CODE § 1094.5 Richter’s fourth cause of action appears to invoke CAL. GOV. CODE § 1094.5 to exhaust judicial remedies when challenging a California administrative decision. FAC ¶¶ 125–27. Defendants Falk, Kasaine, and the City oppose and contend that section 1094.5 only applies to state courts. Dkt. No. 101 at 6. This is incorrect. In my prior Order, I referenced Doe v. Regents of the University of California, 891 F.3d 1147, 1154–55 (9th Cir. 2018), where the Ninth Circuit noted that the statute does not explicitly require that the petition be filed in state court and held that a plaintiff can file a petition in either the state or federal court to exhaust judicial remedies when challenging a California administrative decision. I allowed Richter to assert this same claim to the extent it is challenging the administrative actions relevant to Richter’s other remaining claims. Dkt. No. 74 at 27. But again, because the final administrative action has not yet occurred, there is no decision for Richter to challenge. E. Stanfield’s Motion to Dismiss Stanfield also asserts two separate grounds for dismissal. First, Stanfield argues that Richter’s claims are barred under the Younger abstention doctrine because Richter has a hearing on August 30, 2021 (“Related Action”) before the Office of Administrative Hearings to appeal CalPERS’s cancellation of her IDR application. Dkt. No. 105 at 4–5. The “Younger abstention is required when: (1) state judicial proceedings are pending; (2) the state proceedings involve important state interests; and (3) the state proceedings afford the federal plaintiff an adequate opportunity to litigate federal constitutional claims.” Wiener v. Cty. of San Diego, 23 F.3d 263, 266 (9th Cir. 1994). To decide whether there is a pending state judicial proceeding, “the critical were underway before initiation of the federal proceedings.’” Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir. 1987). “[T]he date for determining whether Younger applies is the date the federal action is filed.” ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014). In this case, abstention is not warranted in part because this case was initiated before the state administrative proceeding. Dkt. No. 107 at 2 n.2. Although it is unclear when exactly Richter filed the appeal before the OAH, because Richter filed this action on December 19, 2019, before even receiving the denial of her IDR benefits in May 2020, the Younger abstention doctrine does not apply.4 See Dkt. No. 1; cf. FAC, Ex. 8. Second, Stanfield argues that Richter does not have standing to pursue claims against Stanfield because she has not pleaded that Stanfield caused any alleged damage in this case. Dkt. No. 105 at 6. Because Richter’s alleged injury depends on the OAH’s final determination of her disability benefits, Stanfield’s motion to dismiss based on standing is also STAYED. Richter moves for leave to file a Fifth Amended Complaint with 15 claims. Dkt. No. 79. In my prior Order I instructed that no further amendments would be permitted. Dkt. No. 74 at 27. In the Fifth AC, Richter alleges claims against defendants Damon Gilbert and Bryan Hubbard who Richter had omitted from her FAC that I had previously ordered dismissed without prejudice. See Dkt. No. 80 ¶¶ 20–21; 184–219. Richter also did not serve Gilbert and Hubbard with the FAC. She cannot amend the FAC to add Gilbert and Hubbard as defendants. Because four of the 15 claims in the Fifth AC are the same ones in the FAC, Richter’s motion for leave to amend these first four causes of actions is DENIED, except for the request to amend her equal protection claim, which is STAYED as explained above. See supra Part II.B; 4 Richter also argues that this case does not fall into one of the three categories for which the Younger abstention doctrine applies: (1) parallel, pending state criminal proceedings, (2) state civil proceedings that are akin to criminal prosecution and (3) state civil proceeding that implicate a state interest in enforcing the orders and judgments of its courts.” Dkt. No. 107 at 2 (citing ReadyLink, 754 F.3d at 759). Stanfield opposes and asserts that this case falls under the third category because the “administration of statewide public employees’ retirement systems is a valid and significant state interest. Dkt. No. 105 at 4 (citing California Cty. Superintendents of Sch. Educ. Ass'n v. Marzion, No. 08-CV-04806-CW, 2009 WL 513742, at *4 (N.D. Cal. Mar. 2, Dkt. No. 80 ¶¶ 40–128. Richter adds one new claim, claim eight, under CAL. GOV. CODE § 815.2 for breach of contract and/or implied covenant of good faith and fair dealing. See Dkt. No. 80 ¶ 144–47. Richter asserts that she was an intended third-party beneficiary of the City-CalPERS

contract and was therefore entitled to a timely award of disability retirement. Id. Because I ordered that no further amendments would be permitted, Richter’s motion for leave to add claim eight is DENIED. See Dkt. No. 74 at 1. The rest of Richter’s claims are the same ones that I have dismissed with prejudice in prior orders.5 See Dkt. Nos. 47, 74. Richter’s motion for leave to amend the rest of her claims is also DENIED. Richter also moves for monetary and/or terminating sanctions against defendant Stanfield and his counsel Arthur J. Harris from the law firm Murphy, Pearson, Bradley & Feeney. See Dkt. No. 109. A court may impose sanctions under its inherent power based on a finding of “bad faith or conduct tantamount to bad faith.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001). “Sanctions are available for a variety of types of willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Id. Richter alleges that Stanfield and his counsel acted in bad faith by “raising frivolous arguments” about the Younger doctrine and “misstating laws and facts” about Richter’s failure to timely serve Stanfield. Id. at 1. Stanfield opposes and contends that he accurately explained the ineffective manner in which Richter attempted to serve the FAC and that he is entitled to raise arguments under Younger or any other legal authority. Dkt. No. 111 at 1–2. I agree. Stanfield put forth legitimate arguments under various legal authority and his motion to dismiss Richter’s FAC was not made in bad faith. Accordingly, Richter’s motion for 5 The rest of Richter’s claims, which I have dismissed with prejudice in my prior orders are the following: Claim 5 – Federal Promissory Estoppel; Claim 6 – CA Promissory Estoppel; Claim 7 – Violation of Mandatory Duty under CAL. GOV. CODE §§ 815.6 and 815.2; Claim 9 - § 1983 Deprivation of Right to Public Employment and Violation of CAL. GOV. CODE § 3304(d)(1); Claim 10 – Violation of Peace Officers Bill of Rights under CAL. GOV. CODE § 3304(d)(1); Claim 11 – § 1983 Deprivation of Right to Public Employment and Stigma Plus in Violation of the Fourteenth Amendment Due Process; Claim 12 – Breach of Fiduciary Duty; Claim 13 –§ 1983 Fourteenth Amendment Due Process Right to be Free from State Created Danger; Claim 14 – § 1 sanctions is DENIED. 3 For the reasons explained above, I sua sponte STAY this case pending the final 4 determination from the August 30, 2021 hearing before the Office of Administrative Hearings. 5 Defendants’ motions to dismiss are STAYED. Richter’s motion for leave to amend her Fourth 6 Amended Complaint is DENIED, except for the request to amend her equal protection claim 7 which is STAYED. Richter’s motion for sanctions is DENIED. 8 After the OAH issues a decision, only the City shall file a supplemental motion to dismiss 9 within 20 days of the Hearing decision. It should describe with specificity the issues addressed at 10 the Hearing, and its outcome, attaching pertinent documents in an admissible form. It should 11 address the relevance of those facts to the FAC. Richter may file an opposition brief within 14 12 days of the City’s supplemental motion to dismiss and the City may file a reply brief within 7 days 13 of Richter’s opposition. If the facts interplay with Richter’s remaining claims in a way that 14 warrants dismissal of the case, I will convert the motions into one for summary judgment. 15 IT IS SO ORDERED. a 16 || Dated: July 22, 2021

18 ® liam H. Orrick 19 United States District Judge 20 21 22 23 24 25 26 27 28