1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DUSTY STAHL, No. 2:19-cv-00496-KJM-CKD 12 Plaintiff, 13 v. ORDER 14 ROBERT C. KLOTZ, et al., 15 Defendants. 16 17 Plaintiff Dusty Stahl, a former court clerk for the Amador County Superior Court, 18 brings this whistleblower retaliation action against defendants Robert Klotz, Dawn Harmon, Dana 19 Elmore, Jana Giron, Aimee Trotter and Heather Gardella in their individual capacities, alleging 20 defendants deprived plaintiff of her liberty and property interest in her employment and 21 terminated her without due process in violation of federal and state law. Compl., ECF No. 1, 22 ¶¶ 29–46. Defendants move to dismiss plaintiff’s complaint under Federal Rule of Civil 23 Procedure 12(b)(6). Am. Mot., ECF No. 5; Mem. of Points and Authorities (“Mem.”), ECF No. 24 4-1. Plaintiff filed an opposition, ECF No. 7, and defendants filed a reply, ECF No. 10. The 25 court held a hearing on the matter on June 28, 2019, and submitted the motion. As explained 26 below, the court GRANTS IN PART and DENIES IN PART defendants’ motion. 27 28 1 I. BACKGROUND 2 A. Factual Background 3 Plaintiff alleges she worked as a Deputy Clerk for the Amador County Superior 4 Court from December 2011 until her termination on April 13, 2018. Compl. ¶¶ 10, 28. 5 According to plaintiff, prior to the events giving rise to this suit, she received overwhelmingly 6 positive performance evaluations and comments from her supervisors, coworkers, and members 7 of the public. Id. ¶¶ 12–13. 8 Plaintiff alleges she began working as a courtroom clerk for a new Amador County 9 Superior Court judge following the judge’s appointment to the bench in November 2015. 10 Id. ¶ 15. Plaintiff claims about six months later, in Spring 2016, she began noticing “errors in the 11 process of handling the criminal calendar,” which plaintiff believed, based on her training and the 12 Court Clerk’s Manual, violated the constitutional rights of criminal defendants appearing before 13 the judge, and thus violated federal and California law. Id. ¶¶ 15–18. Plaintiff’s complaint 14 alleges the following improprieties: 15 Courtroom clerks checking boxes on minute orders indicating the judge had read all legal rights to defendants, even when plaintiff observed the judge had not read all the rights 16 checked by the clerks, and thus, the minute orders did not accurately reflect what 17 happened on the record; 18 The court’s not addressing defendants’ time waivers; 19 The court’s not stating defendants’ custodial status upon arraignment; 20 The court’s not providing rights advisements at the time of arraignment or entry of a plea; 21 The court’s sentencing defendants over the phone without an attorney present; 22 The court’s sentencing defendants with a plea in absentia, during which the judge permitted the attorney to sign the probation order; and 23 24 The court’s changing a defendant’s probation order to add more custodial time after the defendant had signed the order and then not stating this fact on the record until plaintiff 25 prompted the judge. 26 Id. ¶ 15. Plaintiff alleges she initially reported her concerns to the presiding judge of the court, 27 and he told plaintiff to give the new judge some time to “[g]et into the swing of things.” Id. ¶ 19. 28 1 After waiting four to five months, during which time the problems continued, in 2 October 2016 plaintiff complained about the errors to defendant Elmore, plaintiff’s supervisor. 3 Id. Plaintiff alleges Elmore told plaintiff Elmore would talk to defendant Klotz, the Court 4 Executive Officer, about the issue, but plaintiff never heard from Klotz. Id. Plaintiff alleges she 5 then spoke to Klotz directly in January 2017 regarding her concerns about the judge. Id. Plaintiff 6 asserts that after this conversation, from January or February 2017 until her suspension from her 7 clerk duties in July 2017, plaintiff complained every three or four weeks to defendants 8 Elmore, Klotz or Harmon, the Court Human Resources Specialist, about the purported violations 9 of criminal defendants’ constitutional rights and other improprieties, but the errors continued. Id. 10 ¶¶ 19, 21. Plaintiff claims once she began making these complaints, the judge adopted a “very 11 cold” tone toward plaintiff and became “increasingly agitated” whenever plaintiff prompted the 12 judge about the perceived errors during court proceedings. Id. ¶¶ 20–21. 13 Plaintiff alleges that around the same time the judge began treating plaintiff in a 14 hostile manner, the named defendants began subjecting her to retaliatory acts, culminating in her 15 termination. Id. ¶¶ 22–23, 25–26, 44–45. She alleges defendants Giron, Trotter and Gardella, the 16 judge’s lead civil clerk, civil clerk and secretary, respectively, engaged in a continuous course of 17 hostile conduct toward plaintiff in retaliation for plaintiff’s complaints about the judge, including 18 making false accusations about plaintiff to Klotz. Id. ¶¶ 22, 44. Plaintiff further alleges Elmore, 19 in retaliation for plaintiff’s complaints about the judge, informed plaintiff in June 2017 she would 20 no longer be allowed to clerk for the subject judge’s criminal calendar. Id. ¶ 23. Plaintiff alleges 21 Elmore then sent plaintiff a text message on July 11, 2017, asking if plaintiff would consider 22 taking $15,000 to $20,000 to leave her job voluntarily and warning “that reporting anything 23 further would make it worse for Plaintiff at the Amador Court because it comes down to Judge 24 versus Clerk.” Id. ¶ 25. Plaintiff claims that two days later, on July 13, 2017, Harmon and 25 Elmore told plaintiff that she would no longer be a courtroom clerk and “banned” plaintiff from 26 the judicial side of the court building. Id. ¶ 26. Plaintiff alleges when she asked Harmon and 27 Klotz the reason for their decision, they would not give her one. Id. A short time later, plaintiff 28 went on medical leave, during which plaintiff learned she was under investigation for a hostile 1 work environment complaint made by defendants Giron and Gardella. Id. ¶ 27. While still on 2 leave, plaintiff received a letter terminating her employment, effective April 13, 2018. Id. ¶ 28. 3 Plaintiff alleges Klotz signed this letter, but Harmon and Elmore also played a role in the 4 retaliatory decision to terminate her. Id. 5 B. Procedural History 6 Plaintiff filed her complaint on March 20, 2019, asserting three claims against 7 defendants. ECF No. 1. She brings her first and second claims under 42 U.S.C. § 1983 against 8 defendants Klotz, Harmon and Elmore, alleging (1) deprivation of her property and liberty 9 interest in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution, and 10 (2) denial of procedural due process in violation of the Fourteenth Amendment. Id. Plaintiff 11 brings her third claim under state law against all defendants, alleging denial of procedural due 12 process in violation of California Government Code section 8547.13. Id. 13 Defendants filed the pending motion to dismiss on April 15, 2019, ECF No. 4, and 14 amended their motion on April 16, 2019, ECF No. 5. Plaintiff opposed, ECF No. 7, and 15 defendants replied, ECF No. 10. 16 II. LEGAL STANDARD 17 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to 18 dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. 19 P. 12(b)(6). The motion may be granted only if the complaint “lacks a cognizable legal theory or 20 sufficient facts to support a cognizable legal theory.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 21 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 22 1097, 1104 (9th Cir. 2008)). 23 Although a complaint need contain only “a short and plain statement of the claim 24 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion 25 to dismiss, this short and plain statement “must contain sufficient factual matter . . . to ‘state a 26 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 27 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something 28 more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and 1 conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting 2 Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss 3 for failure to state a claim is a “context-specific task that requires the reviewing court to draw on 4 its judicial experience and common sense.” Iqbal, 556 U.S. at 679. 5 In making this context-specific evaluation, this court must construe the complaint 6 in the light most favorable to the plaintiff and accept its factual allegations as true. Erickson v. 7 Pardus, 551 U.S. 89, 93–94 (2007) (citing Twombly, 550 U.S. at 555–56). This rule does not 8 apply to “a legal conclusion couched as a factual allegation,” Twombly, 550 U.S. at 555 (quoting 9 Papasan v. Allain, 478 U.S. 265, 286 (1986)), “allegations that contradict matters properly 10 subject to judicial notice,” Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir.) (citing 11 Mullis v. United States Bankr. Court, 828 F.2d 1385, 1388 (9th Cir. 1987)), opinion amended on 12 denial of reh’g, 275 F.3d 1187 (9th Cir. 2001), or material attached to or incorporated by 13 reference into the complaint, see id. A court’s consideration of documents attached to a 14 complaint, documents incorporated by reference in the complaint, or matters of judicial notice 15 will not convert a motion to dismiss into a motion for summary judgment. United States v. 16 Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 17 1484 (9th Cir. 1995); cf. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 18 2002) (even though court may look beyond pleadings on motion to dismiss, generally court is 19 limited to face of the complaint on 12(b)(6) motion). 20 III. DISCUSSION 21 Defendants move to dismiss plaintiff’s state law whistleblower retaliation claim 22 against all defendants, arguing plaintiff has not alleged a prima facie claim under California 23 Government Code section 8547 et seq. and defendants are entitled to judicial immunity from 24 liability. Mem., ECF No. 4-1, at 3–5. Defendants further move to dismiss plaintiff’s § 1983 25 claims against defendants Harmon and Elmore and also to the extent plaintiff bases those claims 26 on defendants’ failure to administer progressive discipline as required by California law. Id. at 6– 27 8. 28 1 A. California Government Code Section 8547 Claim 2 Defendants first move to dismiss plaintiff’s state law claim for whistleblower 3 retaliation. Id. at 3. The California Whistleblower Protection Act, Cal. Gov’t Code § 8547 et 4 seq., “prohibits retaliation against state employees who ‘report waste, fraud, abuse of authority, 5 violation of law, or threat to public health.’” Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 6 882 (2008) (quoting Cal. Gov’t Code § 8547.1), superseded by statute on other grounds, Act of 7 July 15, 2010, 2010 Cal. Legis. Serv. Ch. 104, § 1. The Act expressly applies to the California 8 courts, including the superior courts, imposing liability “in an action for damages” on “a person 9 who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against 10 [a court] employee or applicant for employment for having made a protected disclosure.” Cal. 11 Gov’t Code § 8547.13(e). To establish a prima facie case of whistleblower retaliation under 12 section 8547 et seq., a plaintiff must show she made a protected disclosure, she “was subjected to 13 reprisals or other disciplinary action,” and a “causal link” exists between the disciplinary action 14 and the protected disclosure. Manavian v. Dep’t of Justice, 28 Cal. App. 5th 1127, 1141 (2018) 15 (citing Cal. Gov’t Code §§ 8547.1, 8547.3), rev. denied (Jan. 23, 2019); see also Wabakken v. 16 Cal. Dep’t of Corr. & Rehab., 801 F.3d 1143, 1146 (9th Cir. 2015) (citing Cohen v. Fred Meyer, 17 Inc., 686 F.2d 793, 796 (9th Cir. 1982)) (whistleblower retaliation claim requires showing of 18 causal link between protected activity and adverse action). 19 Defendants argue plaintiff has not established a whistleblower retaliation claim 20 under section 8547 et seq. because the allegations in the complaint do not satisfy the protected 21 disclosures element of a prima facie claim. Mem. at 3. Specifically, defendants contend the 22 alleged improprieties about which plaintiff complained do not meet the definition of protected 23 disclosures because these improprieties, having occurred in an open courtroom and on the record 24 during official judicial proceedings, constitute publicly known information. Id. Plaintiff argues 25 generally that the alleged improprieties “fall[ ] squarely within the definition of a ‘protected 26 disclosure’ under California Government Code Section 8547.2(e).” Opp’n, ECF No. 7, at 1. 27 ///// 28 ///// 1 The Whistleblower Protection Act defines the term “protected disclosure” as: 2 a good faith communication, including a communication based on, or when carrying out, job duties, that discloses or demonstrates an 3 intention to disclose information that may evidence (1) an improper governmental activity, or (2) a condition that may significantly 4 threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of 5 remedying that condition. 6 Cal. Gov’t Code § 8547.2(e). The Act further defines an “improper governmental activity” as: 7 an activity by a state agency or by an employee that is undertaken in the performance of the employee’s duties, undertaken inside a state 8 office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is 9 within the scope of his or her employment, and that (1) is in violation of any state or federal law or regulation, including, but not limited to, 10 corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious 11 prosecution, misuse of government property, or willful omission to perform duty, (2) is in violation of an Executive order of the 12 Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting 13 Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency. 14 15 Id. § 8547.2(c). The statutory definition of improper governmental activity includes “any activity 16 by the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the 17 Courts, or by an employee thereof.” Id. 18 Defendants rely on another whistleblower statute, California Labor Code 19 section 1102.5, to argue that reporting publicly known information, such as improprieties 20 occurring during criminal courtroom proceedings, does not constitute a protected disclosure under 21 the Whistleblower Protection Act. See Mem. at 3–5. Defendants cite Mize-Kurzman v. Marin 22 Community College District, 202 Cal. App. 4th 832 (2012), in support of this argument. Mem. 23 at 3. The court in that case considered a jury instruction stating, “[r]eporting publicly known 24 facts is not a protected disclosure” under two different California whistleblower statutes, Labor 25 Code section 1102.5 and Education Code section 87160 et seq. Mize-Kurzman, 202 Cal. App. 4th 26 at 844–45. The Mize-Kurzman court held the instruction was proper because reporting publicly 27 known facts does not constitute a protected disclosure. Id. at 858–59. Defendants argue the 28 holding of Mize-Kurzman extends to California Government Code section 8547 et seq., and thus, 1 plaintiff’s alleged complaints do not qualify for whistleblower protection. Mem. at 4–5. Plaintiff 2 argues the Mize-Kurzman court did not consider the definition of a protected disclosure under 3 section 8547 because the plaintiff there did not bring a claim under that statute. Opp’n at 12. 4 The reasoning underlying the Mize-Kurzman decision supports the conclusion that 5 its interpretation of protected disclosures extends to section 8547. In reaching its holding, the 6 Mize-Kurzman court relied on the “ordinarily understood meaning” of “disclosure” as “to reveal 7 something that was hidden and not known.” 202 Cal. App. 4th at 858–59 (citing Webster’s Third 8 New International Dictionary 645 (1968)) (quoting Huffman v. Office of Pers. Mgmt., 263 F.3d 9 1341, 1349–50 (Fed. Cir. 2001), superseded by statute, Whistleblower Protection Enhancement 10 Act of 2012, Pub. L. No. 112-199, sec. 101, § 2302(f)(1)(B), 126 Stat. 1465, 1466). Citing the 11 California Legislature’s choice to use “variants of the term ‘disclose’” in Labor Code 12 section 1102.5(b) and Education Code section 87162(e), the court concluded “there [was] no 13 reason to believe the terms were being used in anything other than their ordinary sense.” Id. 14 Here, the plain language of section 8547.2 likewise supports construing the term “disclosure” 15 consistent with its dictionary definition because there is no indication of any legislative or other 16 intent to deviate from that definition; nothing in the legislative history of section 8547 or the 17 relevant case law indicates the Legislature intended the term “protected disclosure” in section 18 8547.2(e) to have a significantly different meaning. 19 Further, the Mize-Kurzman court supported its interpretation of “protected 20 disclosure” by citing cases analyzing the definition of a protected disclosure under the federal 21 Whistleblower Protection Act. Id. at 858 (citing Meuwissen v. Dep’t of Interior, 234 F.3d 9, 12– 22 13 (Fed. Cir. 2000); Francisco v. Office of Pers. Mgmt., 295 F.3d 1310, 1314 (Fed. Cir. 2002), 23 both superseded by statute, § 2302(f)(1)(B), 126 Stat. at 1466). According to the Mize-Kurzman 24 court, “[t]he California [Whistleblower Protection Act] . . . was intended to align state 25 whistleblower statutes with those in existing federal law.” Id. at 847 (internal quotations and 26 citation omitted). Although Congress amended the definition of a protected disclosure under the 27 federal Whistleblower Protection Act in November 2012 to include a disclosure that “revealed 28 information that had previously been disclosed,” 5 U.S.C. § 2302(f)(1)(B), at the time of the 1 Mize-Kurzman decision, federal law did not protect the disclosure of publicly known information. 2 See § 2302(f)(1)(B), 126 Stat. at 1466 (adding § 2302(f)(1)(B) to the federal Whistleblower 3 Protection Act). Unlike the federal Whistleblower Protection Act, the California Whistleblower 4 Protection Act has not been amended to expressly protect disclosures of publicly known 5 information. Therefore, the Mize-Kurzman court’s reliance on Federal Circuit case law 6 interpreting the pre-amendment definition of a protected disclosure under federal law supports 7 interpreting that term, as used in the California Whistleblower Protection Act, to require the 8 reporting of information not publicly known. 9 Plaintiff argues the Mize-Kurzman holding does not apply here because 10 section 8547.2(e) provides a definition of a protected disclosure, unlike Labor Code 11 section 1102.5. Opp’n at 11. However, plaintiff’s argument overlooks the substantive similarity 12 between the disclosures protected under each statute. Labor Code section 1102.5(b) protects 13 disclosures government employees have “reasonable cause to believe . . . disclose[ ] a violation of 14 state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or 15 regulation.” Additionally, the Education Code provision analyzed in Mize-Kurzman, expressly 16 defines “[p]rotected disclosure” as: 17 a good faith communication that discloses or demonstrates an intention to disclose information that may evidence either of the 18 following: 19 (1) An improper governmental activity. 20 (2) Any condition that may significantly threaten the health or safety of employees or the public if the disclosure or 21 intention to disclose was made for the purpose of remedying that condition. 22 23 Cal. Educ. Code § 87162(e). The similarity between the disclosures protected under 24 section 8547.2(e), Labor Code section 1102.5(b) and Education Code section 87162(e) reinforces 25 the conclusion that the Mize-Kurzman holding extends to section 8547 et seq. Thus, the reporting 26 of publicly known information does not constitute a “protected disclosure” within the meaning of 27 section 8547.2(e). 28 1 Additionally, plaintiff argues that, even if section 8547 et seq. does not protect 2 disclosures of publicly known information, at least some of the alleged improprieties about which 3 plaintiff complained “were generally omissions, versus actions, and thus, not generally known to 4 the public.” Opp’n at 12–13. At hearing on defendants’ motion, plaintiff’s counsel further 5 argued certain of the alleged errors, such as the clerks creating inaccurate minute orders, see 6 Compl., ECF No. 1, ¶ 15, either did not occur on the public record or were only apparent, if at all, 7 to the court, criminal defendants, prosecutor and defense attorney. Therefore, because members 8 of the public must either have been present in the courtroom or scoured the record to learn of 9 these errors, the errors cannot be publicly known. While this argument may have merit, the 10 complaint does not allege the extent to which the purported improprieties in this case did not 11 appear in the record or were otherwise not publicly known. Accordingly, given that plaintiff 12 alleges these improprieties occurred in an open courtroom during official court proceedings on 13 the public record, plaintiff’s alleged complaints about these improprieties do not qualify as 14 protected disclosures under section 8547.2(e). 15 The court GRANTS defendants’ motion to dismiss plaintiff’s claim based on 16 California Government Code section 8547.13. Because the court finds plaintiff has failed to state 17 a claim under section 8547.13, it need not address the question of judicial immunity. 18 B. Deprivation of Property and Liberty Interest and Denial of Due Process 19 In her first and second causes of action under § 1983, plaintiff alleges defendants 20 Klotz, Harmon and Elmore violated her Fifth and Fourteenth Amendment rights under the U.S. 21 Constitution by depriving her of her property and liberty interest in her job without due process of 22 law. Compl. ¶¶ 29–36. Specifically, plaintiff alleges these defendants did not provide her with 23 any documentary evidence of the charges against her, progressive discipline before taking 24 disciplinary action against her or a pre-termination hearing. Id. ¶ 34. “To obtain relief on § 1983 25 claims based upon procedural due process, the plaintiff must establish the existence of ‘(1) a 26 liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the 27 government; [and] (3) lack of process.’” Guatay Christian Fellowship v. County of San Diego, 28 670 F.3d 957, 983 (9th Cir. 2011) (alteration in original) (quoting Portman v. County of Santa 1 Clara, 995 F.2d 898, 904 (9th Cir. 1993)). Although defendants do not dispute the existence or 2 deprivation of plaintiff’s property interest in her employment as a court clerk, they move to 3 dismiss plaintiff’s § 1983 claims against defendants Harmon and Elmore and also to the extent 4 plaintiff bases those claims on the allegation defendants did not comply with the requirement of 5 progressive discipline under California law. Mem. at 6–8. 6 1. Claims Against Defendants Harmon and Elmore 7 Defendants contend even if plaintiff’s due process rights were violated, plaintiff 8 has not alleged facts showing defendants Harmon and Elmore either had any obligation to 9 provide plaintiff with or took any actions depriving plaintiff of her constitutional due process 10 rights. Id. at 6. Plaintiff argues Harmon, as the Court Human Resources Specialist, and Elmore, 11 as plaintiff’s direct supervisor, had a responsibility to know “what rights employees possess prior 12 to disciplinary actions against [them].” Opp’n at 14. Plaintiff further argues she has alleged 13 Harmon and Elmore “directed[ ] or ratified the tortious acts or omissions of other employees” and 14 “each [was] instrumental in carrying out the illegal actions against Plaintiff.” Id. 15 To state a claim under § 1983, a plaintiff must allege: (1) the defendants acted 16 under the color of state law, and (2) the defendants deprived the plaintiff of a federal 17 constitutional or statutory right. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 18 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Additionally, a plaintiff must show the 19 named defendants personally participated in the acts giving rise to the claim. Taylor v. List, 20 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 1983 arises only upon a showing of 21 personal participation by the defendant.” (citing Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 22 1979))). A defendant personally participates in the alleged deprivation of a constitutional right 23 “within the meaning of § 1983 ‘if he does an affirmative act, participates in another’s affirmative 24 act, or omits to perform an act which he is legally required to do that causes the deprivation.’” 25 Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 26 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection can be 27 established not only by some kind of direct personal participation in the deprivation, but also by 28 setting in motion a series of acts by others which the actor knows or reasonably should know 1 would cause others to inflict the constitutional injury.” Johnson, 588 F.2d at 743–44 (citing 2 Beverly v. Morris, 470 F.2d 1356, 1356 (5th Cir. 1972) (per curiam)). 3 Plaintiff has alleged sufficient facts at this stage of the proceedings to establish 4 Harmon’s and Elmore’s personal participation in, or causal connection to, the alleged deprivation 5 of plaintiff’s procedural due process rights. In her complaint, plaintiff alleges defendants Klotz, 6 Harmon, and Elmore 7 denied Plaintiff procedural due process by failing and refusing to administer progressive discipline before taking disciplinary action 8 against Plaintiff; by failing and refusing to provide Plaintiff any documents relied upon for her suspension and termination . . .; by 9 failing to offer a [pre-termination hearing] for the suspension; and for the termination of employment. 10 11 Compl. ¶ 35. Although plaintiff alleges Klotz signed her termination letter, id. ¶ 28, she alleges 12 Harmon and Elmore knew of her complaints about the subject judge because plaintiff complained 13 directly to them between October 2016 and July 2017, id. ¶¶ 19, 21. She further alleges they 14 relieved plaintiff of her job duties in retaliation for these complaints in June and July 2017; 15 Elmore informed plaintiff she would no longer clerk for the judge’s criminal calendar and asked 16 if plaintiff would take money to leave her job voluntarily, while warning “that reporting anything 17 further would make [the situation] worse for Plaintiff,” and Harmon and Elmore subsequently 18 relieved plaintiff of her duties entirely, banned her from the judicial side of the court building and 19 refused to give plaintiff a reason for their decision. Id. ¶¶ 23, 25, 26, 28. Taking these allegations 20 as true, plaintiff has alleged specific facts plausibly suggesting Harmon and Elmore, in retaliation 21 for plaintiff’s complaints, participated in or set in motion a series of acts by others they knew or 22 reasonably should have known would result in plaintiff’s termination without due process. 23 Accordingly, the court DENIES defendants’ motion to dismiss plaintiff’s § 1983 24 claims as to Harmon and Elmore. 25 2. Progressive Discipline 26 Defendants also argue the court must dismiss plaintiff’s procedural due process 27 claims to the extent plaintiff bases those claims on defendants’ alleged failure to comply with the 28 California rule of progressive discipline because the denial of state-law-mandated progressive 1 discipline is not cognizable as a federal constitutional claim. Mem. at 8. Plaintiff contends state- 2 mandated progressive discipline can provide a proper basis for a due process claim under the U.S. 3 Constitution. Opp’n at 14–15. 4 Once a court determines a person has a protected interest under the Fourteenth 5 Amendment, “‘the question remains what process is due.’” Cleveland Bd. of Educ. v. Loudermill, 6 470 U.S. 532, 541 (1985) (quoting Morrisey v. Brewer, 408 U.S. 471, 481 (1972)). “The answer 7 to that question is not to be found in the [state] statute.” Id. In other words, federal law 8 determines the process that is due. Voight v. Savell, 70 F.3d 1552, 1563 (9th Cir. 1995) (citing 9 Loudermill, 470 U.S. at 541). 10 Here, plaintiff does not dispute the adequacy of California-mandated procedures 11 under the U.S. Constitution; rather, she argues defendants did not follow the state-law-required 12 procedure of progressive discipline before terminating her. Compl. ¶¶ 35, 46. As the Ninth 13 Circuit concluded in Voight, this type of claim is not cognizable under federal law. See Voight, 14 70 F.3d at 1563 (holding plaintiff’s allegation that defendants did not follow state-law-established 15 procedures more extensive than those required by U.S. Constitution did not establish federal due 16 process claim); cf. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 95–96 (1984) 17 (holding claim against state officials alleging they did not follow requirements of state statute was 18 a state law claim), superseded by statute on other grounds, 28 U.S.C. § 1367. 19 The court GRANTS defendants’ motion to dismiss as to the alleged denial of state- 20 law-mandated progressive discipline. 21 C. Leave to Amend 22 Federal Rule of Civil Procedure 15(a)(2) provides, “[t]he court should freely give 23 leave [to amend pleadings] when justice so requires,” and the Ninth Circuit has “stressed Rule 24 15’s policy of favoring amendments,” Ascon Props. Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 25 (9th Cir. 1989) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); 26 United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). “In exercising its discretion [to grant 27 or deny leave to amend] ‘a court must be guided by the underlying purpose of Rule 15—to 28 facilitate decision on the merits rather than on the pleadings or technicalities.’” Leighton, 1 833 F.2d at 186 (quoting Webb, 655 F.2d at 979). However, “the liberality in granting leave to 2 amend is subject to several limitations.” Ascon Props., 866 F.2d at 1160 (citing Leighton, 3 833 F.2d at 186). “Leave need not be granted where the amendment of the complaint would 4 cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, 5 or creates undue delay.” Id. (citing Leighton, 833 F.2d at 186). In addition, a court should look 6 to whether the plaintiff has previously amended the complaint, as “the district court’s discretion is 7 especially broad ‘where the court has already given a plaintiff one or more opportunities to amend 8 [its] complaint.’” Id. at 1161 (alteration in original) (quoting Leighton, 833 F.2d at 186 n.3). 9 Here, plaintiff’s alleged disclosures about the purported improprieties do not 10 qualify for protection under California Government Code section 8547.2(e) because plaintiff has 11 not pleaded sufficient facts in her complaint showing these improprieties were not publicly 12 known information. As explained above, however, plaintiff plausibly argued in her pleadings and 13 at hearing that at least some of these errors may not have occurred on the record or were 14 otherwise not publicly known. Therefore, the court grants plaintiff leave to amend her complaint 15 to clarify whether and to what extent the alleged improprieties were not publicly known, if she is 16 able to amend while complying fully with Federal Rule of Civil Procedure 11. 17 Further, the court grants plaintiff leave to amend to bring a state law claim based 18 on the denial of progressive discipline. While plaintiff may not bring a due process claim under 19 § 1983 based on the denial of state-mandated progressive discipline, she may bring that claim 20 under state law. See Voight, 70 F.3d at 1563. Under 28 U.S.C. § 1367, a federal court may 21 exercise supplemental jurisdiction over federal and state claims so long as the various claims 22 “derive from a common nucleus of operative fact.” United Mine Workers of Am. v. Gibbs, 23 383 U.S. 715, 725 (1966), superseded by statute on other grounds, 28 U.S.C. § 1367; see also 24 28 U.S.C. § 1367(a) (supplemental jurisdiction appropriate when state and federal claims “form 25 part of the same case or controversy”). Plaintiff’s allegations regarding the denial of progressive 26 discipline arise from the same facts supporting her federal due process claims. Accordingly, the 27 court finds granting plaintiff leave to amend would not be futile. 28 ///// 1 IV. CONCLUSION 2 For the foregoing reasons, the court GRANTS defendants’ motion to dismiss 3 plaintiff’s complaint as to plaintiff’s California Government Code section 8547.13 claim and 4 42 U.S.C. § 1983 claims to the extent those claims are based on the denial of progressive 5 discipline. The court DENIES defendants’ motion as to plaintiff’s § 1983 claims against 6 defendants Harmon and Elmore. The court grants plaintiff leave to amend only to the extent 7 consistent with this order. 8 IT IS SO ORDERED. 9 DATED: August 2, 2019. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28