1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARK A. WILSON, Case No. 3:21-cv-09157-WHO
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS FOURTH AMENDED COMPLAINT 10 OAKLAND UNIFIED SCHOOL DISTRICT, et al., Re: Dkt. No. 82 11 Defendants.
12 13 Plaintiff Mark Wilson brings another amended complaint against his former employer, the 14 Oakland Unified School District (“OUSD”), as well as individual Jenine Lindsey, an executive 15 director of OUSD (collectively, “the defendants”). He again alleges that he was fired from his 16 position as a school security guard for discriminatory and retaliatory reasons related to his reports 17 of unsafe and unlawful conduct by school employees. After at least four opportunities to amend 18 his complaint, including two with counsel, Wilson still fails to allege that his claims survive the 19 defendants’ judicial exhaustion, collateral estoppel, and statute of limitations arguments. The 20 defendants’ motion is therefore GRANTED, with prejudice. 21 BACKGROUND 22 I. FACTUAL BACKGROUND 23 Wilson alleges the following in his operative Fourth Amended Complaint (“FAC”) [Dkt. 24 No. 81]. 25 Wilson began work at OUSD in 2005. Id. ¶¶ 17, 20. From 2007 until his termination in 26 2019, he served as a school security guard for Rusdale High School in Oakland, California. Id. 27 ¶¶ 19-20. Though he was a “classified employee,” not a teacher, he was regularly assigned to 1 certify that those classes were taught by credentialed teachers, and he says these certifications 2 were unlawful. Id. ¶ 23. Spending time teaching classes took away from the time that he could 3 spend on his security guard duties, and he “raised multiple, repeated concerns” to the school 4 principal, Willie Thompson, about the lack of campus supervision for students. See id. ¶¶ 24-25. 5 He also generally alleges that he raised concerns that he could not serve as a certified instructional 6 teacher under California law. Id. ¶ 43. 7 According to the FAC, on September 17, 2018, Wilson was in his office with another 8 Rusdale employee when he saw on video surveillance a “large group” of students congregating 9 near an off-limits area of the school. Id. ¶¶ 26-27, 30, 32. A few minutes later, a girl student 10 entered an off-limits locker room near Wilson’s office. Id. ¶ 34. Wilson directed another girl 11 student to enter the locker room to instruct the first student to exit, and both students soon left the 12 area. See id. Later that afternoon, an OUSD police officer instructed Wilson to leave campus, and 13 he has not been permitted to return. Id. ¶ 35. 14 On October 23, 2018, Wilson was informed that the OUSD police were investigating 15 alleged misconduct from September 17. Id. ¶ 37. Wilson learned that he “was accused of having 16 inappropriate physical contact with one of the female students” near the locker room. Id. Wilson 17 denies that such contact occurred. Id. He also alleges that the school only maintains surveillance 18 footage for thirty days, so by the time he learned of the charges, the surveillance footage was gone. 19 See id. at ¶ 36. 20 The OUSD police recommended that Wilson be suspended for five days without pay. Id. 21 ¶ 39. Jenine Lindsey decided to terminate Wilson instead. Id. OUSD held a Skelly hearing 22 concerning Wilson’s termination on February 11, 2019, which Wilson attended. Id. ¶ 41. Wilson 23 asserts that he did not receive a fair opportunity to defend himself at this hearing because he was 24 not represented by counsel, he could not call or examine witnesses, he was not allowed to testify 25 on his own behalf, he was not permitted to submit a written statement or make opening or closing 26 arguments, he did not receive a verbatim transcript, and his hearing officer was not neutral. Id. 27 ¶ 41. The Skelly hearing “ultimately upheld” Lindsey’s termination decision. Id. ¶ 42. 1 hearing, which confirmed that he would be dismissed “effective immediately.” Id. Ex. A. It also 2 provided that he would remain on paid administrative leave through April 8, 2019. Id. Wilson 3 generally asserts that he made “many repeated requests for review” of that decision. Id. ¶ 48. 4 On January 24, 2020, he “arrived for an arbitration hearing” for review of the decision. Id. 5 Rather than arbitrate, OUSD told Wilson that it wanted to settle instead. Id. Wilson alleges that 6 Lindsey “was materially involved” in the decision to settle instead of arbitrate. Id. 7 On February 25, 2020, Wilson received the written settlement terms, which he says were 8 different from the terms that were verbally agreed to on January 24. Id. ¶ 49. He says that he 9 requested additional time to respond to the settlement but did not hear back from Lindsey or 10 OUSD. Id. 11 On May 15, 2020, Wilson filed a complaint of discrimination with the Equal Employment 12 Opportunity Commission (“EEOC”), which jointly filed with the California Department of Fair 13 Employment and Housing (“DFEH”). Id. ¶ 50. Wilson received his right to sue letter on May 19, 14 2020. Id. ¶ 59. 15 II. PROCEDURAL BACKGROUND 16 Wilson filed his first complaint in this court pro se on November 26, 2021. [Dkt. No. 1]. 17 Subsequently, the defendants moved to dismiss several iterations of Wilson’s complaint, and I 18 have granted their motions three times with leave to amend, including after Wilson was appointed 19 pro bono counsel. [Dkt. Nos. 37, 49, 80]. Each iteration of the complaint asserted slightly 20 different causes of action, though the most recent Third Amended Complaint asserted essentially 21 the same causes of action as those asserted in the operative FAC, and my order dismissing that 22 complaint is most relevant. (“Prior Order”) [Dkt. No. 80]. 23 Now Wilson has filed his FAC asserting five causes of action: (1) retaliation motivated by 24 protected First Amendment conduct, under 42 U.S.C. § 1983, FAC ¶¶ 69-71; (2) whistleblower 25 retaliation based upon protected disclosure of misconduct, in violation of California Labor Code 26 section 1102.5(c), id. ¶¶ 72-73; (3) violation of the Reporting by School Employees of Improper 27 Government Activities Act under California Education Code section 44114, id. ¶¶ 74-75; (4) race 1 failure to prevent discrimination in violation of California Government Code section 12940(k), id. 2 ¶¶ 86-93. 3 The defendants moved to dismiss all five causes of action. (“Mot.”) [Dkt. No. 82]. Wilson 4 opposed. (“Oppo.”) [Dkt. No. 84]. The defendants replied. (“Repl.”) [Dkt. No. 85]. I held a 5 hearing at which counsel for both parties appeared. 6 LEGAL STANDARD 7 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 8 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 9 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 10 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when 11 the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant 12 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation 13 omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. 14 While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts 15 sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. 16 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 17 Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 18 plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court 19 is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 20 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 21 2008). 22 If the court dismisses the complaint, it “should grant leave to amend even if no request to 23 amend the pleading was made, unless it determines that the pleading could not possibly be cured 24 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making 25 this determination, the court should consider factors such as “the presence or absence of undue 26 delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, 27 undue prejudice to the opposing party and futility of the proposed amendment.” Moore v. Kayport 1 DISCUSSION 2 The defendants move to dismiss all of Wilson’s claims for judicial exhaustion and 3 collateral estoppel reasons. They also move to dismiss the race discrimination claim for failure to 4 administratively exhaust, the state Labor Code and Education Code claims for failure to comply 5 with the California Government Claims Act (“CGCA”), and the First Amendment claim as 6 untimely. See D. Mot. Many of these arguments were addressed in the Prior Order, which 7 granted Wilson leave to amend his complaint to add plausible allegations that would survive a 8 subsequent motion. Upon review, he has failed to do so. 9 I. THE RACE DISCRIMINATION CLAIM 10 As a preliminary matter, Wilson’s opposition voluntarily dismissed his fourth case of 11 action for race discrimination. Oppo. 2:3-9. It is DISMISSED with prejudice. 12 In reply, the defendants argue that because that claim is dismissed, the fifth cause of action 13 for failure to prevent race discrimination must also be dismissed. Repl. 1:4-15. They cite 14 California case law that provides, if “a plaintiff cannot establish a claim for discrimination, the 15 employer as a matter of law cannot be held responsible for failing to prevent [the] same.” 16 Featherstone v. S. Cal. Permanente Med. Grp., 10 Cal. App. 5th 1150, 1166 (2017) (citation 17 omitted). The Featherstone court found that the plaintiff could not establish her discrimination 18 claim as a matter of law and therefore could not bring a derivative failure to prevent claim. See id. 19 But here, Wilson did not concede that he cannot establish the facts of discrimination or that it fails 20 as a matter of law—he agreed to dismiss “[i]n the interest of judicial economy and efficiency,” not 21 for merits-based reasons. Oppo. 2:7-8. And the defendants do not argue that Wilson cannot 22 establish as a matter of law that race discrimination occurred, nor do they argue that even if 23 Wilson’s race discrimination claim is procedurally barred (for example, for administrative 24 exhaustion reasons) his failure to prevent claim is automatically barred as well. Accordingly, the 25 defendants’ request to dismiss the failure to prevent claim is DENIED on this basis. For the 26 reasons that follow in the next section, however, the failure to prevent claim must be dismissed. 27 II. JUDICIAL EXHAUSTION AND THE STATE LAW CLAIMS 1 Government Code, and Education Code for failure to allege judicial exhaustion.1 Prior Order 2 10:1-11:6. I granted leave because I found that Wilson could possibly amend his complaint to 3 make such allegations, or, “though less likely,” to plead facts he was not required to judicially 4 exhaust the claims because his Skelly hearing lacked sufficient judicial characteristics. See id. 5 The FAC takes the latter path. Wilson alleges that the Skelly hearing did not provide a fair 6 opportunity to defend himself because his union representative at the hearing was not an attorney 7 and failed to conduct discovery or legal research; he could not call or examine his own witnesses, 8 present evidence, or cross-examine OUSD’s witnesses; he never received a “verbatim transcript” 9 of the hearing; he did not have the opportunity to submit a written statement or make opening or 10 closing statements; and the hearing officer was not neutral because he previously worked for 11 OUSD. FAC ¶¶ 7, 41; see also Oppo. 8:22-11:9. The defendants argue that Wilson fails to plead 12 judicial exhaustion because the Skelly hearing provided a fair opportunity to litigate all of the 13 issues he raises in this court. See Mot. 15:11-17:11. 14 Issues of judicial exhaustion arise “when a party initiates and takes to decision an 15 administrative process,” regardless of whether the party was required to go through that process as 16 a matter of administrative exhaustion. McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 17 88, 113, 194 P.3d 1026, 1041 (2008). “Once a decision has been issued, provided that decision is 18 of a sufficiently judicial character to support collateral estoppel, respect for the administrative 19 decisionmaking process requires that the prospective plaintiff continue that process to completion, 20 including exhausting any available judicial avenues for reversal of adverse findings.” Id. (citation 21 omitted). “Failure to do so will result in any quasi-judicial administrative findings achieving 22 binding, preclusive effect and may bar further relief on the same claims.” Id. (citation omitted). 23 Judicial exhaustion is similar to and encompasses the effects of issue preclusion, which 24 “bars the relitigating of issues which were previously resolved in an administrative hearing by an 25 agency acting in a judicial capacity.” Knickerbocker v. City of Stockton, 199 Cal. App. 3d 235, 26
27 1 The Prior Order contained a typographical error that referred to this claim as brought under 1 242 (1988) (citing People v. Sims, 32 Cal. 3d 468, 478-79, 651 P.2d 321, 327 (1982)). “California 2 precedent makes clear that an administrative hearing, to qualify as sufficiently ‘judicial’ for 3 collateral estoppel purposes, need not be identical to a judicial trial, so long as basic due process 4 considerations are satisfied.” Basurto v. Imperial Irrigation Dist., 211 Cal. App. 4th 866, 884 5 (2012). “Indicia of proceedings undertaken in a judicial capacity include a hearing before an 6 impartial decision maker; testimony given under oath or affirmation; a party’s ability to subpoena, 7 call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral 8 and written argument; the taking of a record of the proceeding; and a written statement of reasons 9 for the decision.” Pac. Lumber Co. v. State Water Res. Control Bd., 37 Cal. 4th 921, 944, 126 10 P.3d 1040, 1054-55 (2006) (citing Sims, 651 P.2d at 328-29). Where administrative proceedings 11 lack sufficient judicial characteristics, a party is “not required to seek judicial relief to set aside 12 any findings or bear the consequences of their binding effect.” McDonald, 194 P.3d at 1041 13 (citations omitted). 14 Additionally, and as relevant to this case, a party has two options following an adverse 15 decision from a Skelly hearing: “the employee may petition [the deciding] body for a rehearing. 16 As an alternative or in addition to the rehearing procedure, the employee may seek review of the 17 [body’s] action by means of a petition for writ of administrative mandamus filed in the superior 18 court.” Skelly v. State Pers. Bd., 15 Cal. 3d 194, 204-05, 539 P.2d 774, 782 (1975) (first citing 19 Cal. Gov. Code § 19586; then citing Cal. Gov. Code § 19588; and then citing Boren v. State Pers. 20 Bd., 37 Cal. 2d 634, 637, 234 P.2d 981 (1951)). Petitioning for rehearing requires that the 21 employee file “in writing . . . all of the grounds upon which a rehearing should be granted.” Cal. 22 Gov. Code § 19586. 23 Rather than alleging that he petitioned for rehearing or sought a writ of mandamus, see id.; 24 Skelly, 539 P.2d at 782, Wilson alleges that his Skelly hearing lacked sufficient judicial 25 characteristics to have preclusive, binding effects on future litigation. The defendants counter that 26 Wilson’s allegations directly contradict the record from the hearing that was attached to Wilson’s 27 termination letter. They request judicial notice of the exhibits to Wilson’s termination letter. 1 letter’s exhibits. See [Dkt. No. 81-1]. That March 21, 2019 letter stated that Wilson would be 2 dismissed immediately, following the recommendation from the Skelly hearing officer, and also 3 stated, “I have received the information submitted (attached), and I am in agreement with the 4 assessment and recommendation of the Hearing Officer.” Id. (emphases added). 5 The defendants ask that I consider the “information submitted” and attached to the March 6 21 letter in deciding this motion, and I will. Though the defendants request judicial notice of that 7 information, they fail to explain the request,2 and it seems they intended to seek incorporation by 8 reference. See Al -Ahmed v. Twitter, Inc., 603 F. Supp. 3d 857, 866 (N.D. Cal. 2022) (subsequent 9 history omitted) (“The doctrine of incorporation by reference is distinct from judicial notice.”). 10 Incorporation by reference “permits a district court to consider documents ‘whose contents are 11 alleged in a complaint and whose authenticity no party questions, but which are not physically 12 attached to the . . . pleadings.’” Id. (quoting In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 13 986 (9th Cir. 1999), as amended (Aug. 4, 1999), superseded by statute on other grounds). Even if 14 “the plaintiff does not explicitly allege the contents of the document in the complaint,” 15 incorporation by reference may extend to include a document that the defendant “was allowed to 16 attach” to its motion to dismiss, so long as the plaintiff’s claim “depend[s] on the contents of the 17 document and the parties [do] not dispute the authenticity of the document.” Id. (citing Knievel v. 18 ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)); see also Marder v. Lopez, 450 F.3d 445, 448 (9th 19 Cir. 2006) (“A court may consider evidence on which the complaint ‘necessarily relies’ if: (1) the 20 complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no 21 party questions the authenticity of the copy attached to the 12(b)(6) motion.” (citation omitted)). 22 The attachments to the March 21 letter meet the requirements of the incorporation by 23 reference doctrine. Wilson does not dispute the authenticity of the attachments, see Al-Ahmed, 24 603 F. Supp. 3d at 866, nor does he dispute that he received those exhibits and that they were in 25 fact part of the letter he submitted with his FAC, cf. Marder, 450 F.3d at 448 (looking to whether 26
27 2 Inexplicably, for a third time the defendants filed a request for judicial notice that cites no law 1 the complaint refers to the document). The exhibits are central to his claims, see id., because they 2 relate directly to the procedure provided at the Skelly hearing and whether it constituted a “quasi- 3 judicial” proceeding, see McDonald, 194 P.3d at 1041. And Wilson does not contest that he 4 submitted only part of the letter, nor does he contest judicial notice or incorporation by reference, 5 the latter of which he was given the opportunity to address at the hearing on this motion. Instead, 6 he argues that the defendants “heavily extrapolate” from the “summary” of the hearing—the 7 partial document that he attached to his FAC—but he steadfastly ignores that the rest of that 8 document contained much more than the summary. See Oppo. 10 n.1. The exhibits meet the 9 requirements for incorporation by reference. See Al -Ahmed, 603 F. Supp. 3d at 866; Marder, 450 10 F.3d at 448. I will consider the exhibits, not for the truth of the findings about what happened 11 during the locker room incident or why his employment was terminated, but for the existence of 12 the hearing and procedure itself. 13 Most of Wilson’s allegations starkly contradict the contents of the letter, even setting aside 14 the truth of the findings in the report. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 15 (9th Cir. 2010) (holding that, on a motion to dismiss, courts need not “accept as true allegations 16 that contradict exhibits attached to the Complaint or matters properly subject to judicial notice” 17 (citation omitted). For example, the letter’s attachments show that two union representatives were 18 present and argued on Wilson’s behalf at the hearing, which contradicts his assertion that he did 19 not have representation. See [Dkt. No. 81-1]. Additionally, the very existence of the report 20 attached to the letter contradicts Wilson’s assertion that there is “no official record or transcript” 21 of the hearing or that he could not appeal the hearing decision without a “detailed and neutrally 22 prepared[] record.” Oppo. 9:27-10:9. Wilson does not contest that the report was itself a detailed 23 record of the hearing, or that it laid out the individuals present, the arguments made, the evidence 24 presented, and the ultimate findings. Regardless of the truth of its findings, the report itself 25 precludes these arguments. 26 Additional contradictions are central to Wilson’s judicial exhaustion allegations. See 27 Marder, 450 F.3d at 448. He asserts that he was unable to call and examine his own witnesses or 1 his own behalf and that he submitted evidence to support his case, including many external 2 character references—which Wilson conspicuously does not contest in opposition. Combined 3 with the presence of his union representative, these render implausible his conclusory allegations 4 about calling witnesses. And though he argued at the hearing on this motion that he was 5 precluded from cross-examining the student-complainants at the hearing, he does not plausibly 6 allege that he was not allowed to call them as hostile witnesses. 7 Wilson’s argument that he was unable to present an adequate defense because he was not 8 informed that the hearing would concern conduct beyond the September 17 incident in the locker 9 room is also contradicted by the exhibits. See FAC ¶ 41. The attachments to the March 21 letter 10 show that on December 20, 2018—six weeks before the Skelly hearing on February 11, 2019— 11 Wilson received a letter with the statement of charges against him that also included as 12 attachments a description of “previous incidents” of “unprofessional conduct” dating back to 13 2017. [Dkt. No. 83] Ex. 1 at pdf 9, 23-25. Though I do not consider the facts in these documents 14 for their truth, I consider the documents themselves to the extent that they were provided to 15 Wilson well in advance of the Skelly hearing. He does not contest that he received these 16 documents or that they are authentic. 17 These contradictions show that Wilson fails to plausibly allege that the Skelly hearing was 18 not a “quasi-judicial” proceeding. The FAC and attachments to the letter show that there was “a 19 hearing before an impartial decision maker”; the parties were able to “call, examine, and cross- 20 examine witnesses, to introduce documentary evidence, and to make oral . . . argument”; there was 21 “a taking of a record”; and there was “a written statement of reasons for the decision.” Pac. 22 Lumber Co., 126 P.3d at 1054-55 (citing Sims, 651 P.2d at 328-29). Though it is not clear from 23 the FAC whether the testimony was given under oath, whether the parties could subpoena 24 witnesses, or whether they could make written arguments, California law does not apparently 25 require each of this for a proceeding to be sufficiently judicial in character. See id. (explaining 26 that these are “indicia” considered by the court); see also McDonald, 194 P.3d at 1041 (explaining 27 these facts are considered). And importantly, the facts here are similar to those in Sims, 651 P.2d 1 character to have collateral estoppel effects when it featured an impartial hearing officer, sworn 2 testimony, witnesses, submitted evidence, and a written statement of reasons. Together, then, 3 Wilson fails to plausibly allege that his Skelly hearing was not a “quasi-judicial” proceeding or 4 that the findings do not a preclusive effect on this litigation. See Pac. Lumber Co., 126 P.3d at 5 1054-55; McDonald, 194 P.3d at 1041; Knickerbocker, 199 Cal. App. 3d at 242. 6 Wilson’s reliance on Ahmadi-Kashani v. Regents of University of California, 159 Cal. 7 App. 4th 449 (2008), is unpersuasive given the significantly different factual context. There, the 8 plaintiff repeatedly attempted to report sexual harassment at her job, but her employer did not 9 convene the “meeting” required by the grievance process until the plaintiff finally filed a claim 10 with the DFEH. Id. at 454-55. And at that meeting, witnesses were not placed under oath, 11 documentary evidence was not allowed, third-party witnesses could not be called, and the 12 plaintiff’s counsel could not cross-examine the alleged harasser. Id. After an adverse finding—by 13 the defendant’s “Associate Vice Chancellor,” rather than the hearing officer—the plaintiff sued in 14 state court instead of appealing through the administrative grievance process. See id. at 455. The 15 court of appeal held that the plaintiff was not required to judicially exhaust her claim through the 16 grievance process before filing the lawsuit because the “meeting” was not a “quasi-judicial 17 hearing” as it did not give the plaintiff “an opportunity to prove her case,” given the lack of sworn 18 testimony, cross-examination, and evidence, and because someone other than the hearing officer 19 wrote the decision yet no record of the meeting was made. Id. at 458; see also id. at 459 (“[T]he 20 hearing was not intended as a means for evaluating the truth of [the plaintiff’s] contentions. It was 21 merely a ‘discussion.’”). 22 Not only are those facts very different from the ones here, but also the Ahmadi-Kashani 23 court distinguished its facts from other cases where the plaintiffs participated in “full-blown 24 ‘quasi-judicial’ hearing[s]” that led to “comprehensive” decisions on the merits of the claims. See 25 id. at 456-59 (first citing Page v. Los Angeles Cnty. Prob. Dep’t, 123 Cal. App. 4th 1135 (2004); 26 and then citing Schifando v. City of Los Angeles, 31 Cal. 4th 1074, 79 P.3d 569 (2003), as 27 modified (Dec. 23, 2003)). Here, of course, Wilson’s letter and the incorporated attachments show 1 there was a report with detailed findings, and the report was written by the hearing officer. 2 Though Wilson conclusorily asserts that the hearing officer was biased, he does not contest that 3 the officer accurately drafted the report. Indeed, Wilson’s case aligns much more closely with 4 those distinguished by the Ahmadi-Kashani court for providing sufficient “quasi-judicial” hearings 5 and decisions. 6 Accordingly, Wilson fails to plead non-conclusory allegations that the Skelly hearing 7 lacked sufficient judicial characteristics or otherwise was not a quasi-judicial hearing under the 8 law. See McDonald, 194 P.3d at 1041. He was therefore required to judicially exhaust his claims 9 by filing a writ of mandate with the superior court or petitioning for rehearing. See Skelly, 539 10 P.2d at 782. Because he did not do so, and does not allege that he did so, the findings from the 11 Skelly hearing have a binding and preclusive effect on this litigation. See id. And as explained in 12 the Prior Order, this binding and preclusive effect applies to the issues litigated at that hearing and 13 those that were “necessarily decided” at the hearing. See Knickerbocker, 199 Cal. App. 3d at 242. 14 That includes Wilson’s claims here for retaliation under the California Labor Code, for violation 15 of California Education Code section 44114, and for failure to prevent discrimination under 16 California Government Code section 12940(k). These claims are therefore DISMISSED. Because 17 I have already granted Wilson leave to amend these claims multiple times and he has repeatedly 18 failed to allege sufficient facts, the claims are dismissed with prejudice.3 19 III. COLLATERAL ESTOPPEL AND THE FIRST AMENDMENT CLAIM 20 My Prior Order found that it was “not clear” whether Wilson’s First Amendment claim 21 was subject to the same judicial exhaustion arguments, but that collateral estoppel could apply 22 under federal law, and that Wilson failed to plead that he was not collaterally estopped from 23 bringing the claim. Prior Order 11:7-12:10. 24 “[F]ederal courts give preclusive effect to the findings of state administrative tribunals in 25 subsequent actions under § 1983,” including legal and factual issues, “even if unreviewed, so long 26
27 3 Because these claims are dismissed with prejudice, I need not address the defendants’ arguments 1 as the state proceeding satisfies the requirements outlined in [United States v. Utah Construction 2 & Mining Co., 384 U.S. 394, 422 (1966)].” Miller v. Cnty. of Santa Cruz, 39 F.3d 1030, 1032-33 3 (9th Cir. 1994), as amended (Dec. 27, 1994) (citations omitted). Those requirements are “(1) that 4 the administrative agency act in a judicial capacity, (2) that the agency resolve disputed issues of 5 fact properly before it, and (3) that the parties have an adequate opportunity to litigate.” Id. at 6 1033 (citing Utah Construction, 384 U.S. at 422). “[T]he threshold inquiry for a court deciding 7 whether to give preclusive effect to a state administrative adjudication, is to determine whether the 8 state administrative proceeding was conducted with sufficient safeguards to be equated with a 9 state court judgment.” Plaine v. McCabe, 797 F.2d 713, 719 (9th Cir. 1986) (citing Utah 10 Construction, 384 U.S. at 422). 11 There is no “indiscriminate presumption” that the administrative proceedings were 12 adequate; rather, federal courts “must carefully review the state administrative proceeding to 13 ensure that, at a minimum, it meets the state’s own criteria necessary to require a court of that state 14 to give preclusive effect to the state agency’s decisions.” Id. (footnotes omitted); see also Mills v. 15 City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019) (“State law . . . governs the application of 16 collateral estoppel to a state court judgment in a federal civil rights action.” (citing Ayers v. City of 17 Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990)). California has adopted the Utah Construction 18 requirements for this inquiry. Miller, 39 F.3d at 1033 (citing Plaine, 797 F.2d at 719-20 & n.13). 19 First, upon review of the record of the hearing incorporated into Wilson’s FAC, see Plaine, 20 797 F.2d at 719, it is clear that OUSD and the hearing officer acted “in a judicial capacity” in line 21 with the initial Utah Construction requirement, Miller, 39 F.3d at 1033. “To ascertain whether an 22 agency acted ‘in a judicial capacity,’ the federal courts have looked for factors indicating that the 23 administrative proceedings and determination possessed a ‘“judicial” character.’” Sims, 651 P.2d 24 at 328 (collecting cases). The Sims court found that the state administrative hearing constituted a 25 “judicial-like adversary proceeding” where the hearing was conducted in an impartial manner, the 26 testimony was sworn, the parties called and examined witnesses, the parties introduced 27 documentary evidence and made oral and written arguments, a “verbatim record” of the hearing 1 the facts. Id. Subsequently, the Ninth Circuit in Plaine, 797 F.2d at 720, relied on Sims in holding 2 that a hearing met the Utah Construction requirements where the parties were present and 3 represented, they called and examined witnesses, there was a written decision, and the decision 4 applied a rule to facts. 5 Almost all of the Sims and Plaine considerations were present at Wilson’s Skelly hearing; 6 he challenges only his lack of ability to submit a written statement and his lack of counsel. See 7 FAC ¶ 41. But Sims and Plaine address these considerations as factors, not dispositive 8 requirements, and Wilson points to no other authority that mandates each factor for a hearing to be 9 sufficiently judicial. And here, the lack of written statement is counterbalanced by the notice to 10 Wilson about the hearing and his clear opportunity to prepare and provide oral statements and 11 examinations. Additionally, the allegation that Wilson had a union representative rather than an 12 attorney goes more to the third Utah Construction factor—adequate opportunity to litigate—than 13 this factor, which looks to the character of the proceedings themselves. See Sims, 651 P.2d at 328. 14 Finally and importantly, here, as in Plaine and Sims, the FAC shows that the hearing officer 15 applied facts to the rule—whether Wilson violated Administrative Regulation AR 4218 with 16 disgraceful, discourteous, offensive, or abusive conduct, [Dkt. No. 83] Ex. 1 at pdf 3—meaning 17 the proceeding was “adjudicatory in nature.” Plaine, 797 F.2d at 720. Wilson fails to plausibly 18 allege otherwise. 19 Second, Wilson fails to allege that the Skelly hearing did not “resolve disputed issues of 20 fact properly before it.” Miller, 39 F.3d at 1033. Regardless of the truth or accuracy of the 21 findings themselves, the hearing record and the written statement of reasons provided by the 22 hearing officer show that the officer resolved disputed issues of fact, including about the events 23 related to the locker room incident. Cf. Sims, 651 P.2d at 329 (explaining the “disputed issue of 24 fact resolved by the [administrative agency]”). Wilson does not assert otherwise. 25 Third, the FAC and incorporated exhibits show that the parties had an adequate 26 opportunity to litigate. See Miller, 39 F.3d at 1033. Failing to introduce evidence “or otherwise 27 participate at the hearing” does not necessarily mean there was no adequate opportunity to litigate; 1 and incentive to present its case to the hearing officer.” Sims, 651 P.2d at 329. Here, the 2 attachments to the March 21 letter show that Wilson received a detailed notice of the hearing, 3 including the statement of charges, on December 20, 2018. See [Dkt. No. 83] Ex. 1 at pdf 7-9. 4 Wilson does not contend otherwise in opposition, and I need not accept as true any conclusory 5 allegations that are contradicted by the attachments to the letter he received. See Daniels-Hall, 6 629 F.3d at 998. And Wilson had the opportunity and incentive to fully present his case; indeed, 7 the fact that two union representatives were present and advocated on his behalf at the hearing— 8 which he does not contest—strongly supports the finding that he had the opportunity to litigate. 9 Being unhappy with his representation, failing to request an attorney rather than a union 10 representative despite the time and opportunity to do so, or even failing to present certain 11 arguments for his defense, do not mean that he did not have the opportunity to litigate. Cf. Sims, 12 651 P.2d at 329 (finding that failure to participate in the hearing does not necessarily defeat 13 collateral estoppel). Wilson’s FAC does not plausibly assert otherwise. 14 Accordingly, Wilson fails to plead that the Skelly hearing did not satisfy the Utah 15 Construction requirements. And when administrative proceedings satisfy those requirements, the 16 parties are bound by collateral estoppel and res judicata to the results of “the issues litigated.” 17 Miller, 39 F.3d at 1034 (citing Swartzendruber v. City of San Diego, 3 Cal. App. 4th 896, 908 18 (1992), disapproved of on other grounds by Johnson v. City of Loma Linda, 24 Cal. 4th 61, 5 P.3d 19 874, 881 (2000)). 20 As I previously determined, Wilson’s First Amendment claim was actually litigated at the 21 Skelly hearing. To determine if an issue was litigated in an administrative proceeding, courts 22 examine whether the cause of action presented in the judicial proceeding “encompasses the same 23 primary right that was at stake in the [administrative] proceeding.” Id. (quoting Swartzendruber, 3 24 Cal. App. 4th at 908). My Prior Order found that Wilson’s First Amendment claim encompassed 25 the same “primary right” at stake in the Skelly proceeding, which was his continued employment. 26 Prior Order 12:3-9. I noted that Wilson’s theory for his First Amendment claim is that he was 27 retaliated against for speaking about staffing and safety issues and lost his job as a result, see id., 1 those in Miller, 39 F.3d at 1032, where the plaintiff asserted wrongful termination throughout an 2 administrative proceeding, and instead of seeking review of that decision and judicially exhausting 3 his claim, he sued the defendants in federal court under § 1983. The Ninth Circuit held that his 4 alleged civil rights violations merely “restate[d] his wrongful termination contentions in 5 constitutional terms” because they both sought the same primary right of continued employment. 6 Id. at 1034-35 (citing Swartzendruber, 3 Cal. App. 4th at 908). That finding is again directly 7 applicable here, and Wilson does not argue otherwise. 8 For those reasons, the Skelly hearing met the Utah Construction requirements, and the First 9 Amendment claim was actually litigated in that hearing. Wilson’s complaint does not plausibly 10 allege otherwise. Collateral estoppel therefore bars this claim. It is DISMISSED, and because 11 Wilson previously had opportunities to amend, and he does not point to additional facts that he 12 would be able to assert if he were again permitted amendment, this dismissal is with prejudice. 13 IV. STATUTE OF LIMITATIONS FOR FIRST AMENDMENT CLAIM 14 Finally, even if the First Amendment claim is not barred by collateral estoppel, it is barred 15 by the statute of limitations. My Prior Order noted that the defendants raised a statute of 16 limitations argument in reply and so I instructed Wilson to address the argument in his next 17 amended complaint, if necessary or possible. Prior Order 21:27-22:16. That Order also found that 18 Wilson’s date of injury for the purposes of his First Amendment claim, which asserts that Lindsey 19 retaliated against him for protected conduct, was April 8, 2019, the day he stopped being paid. Id. 20 Wilson now asserts that the two-year statute of limitations should be equitably tolled to January 21 24, 2020, the date of the unsuccessful arbitration hearing. His new allegations include that, “[o]n 22 information and belief, Ms. Lindsey was materially involved in the decision to scrap the 23 arbitration hearing and pursue [a] verbal settlement agreement instead,” and that “[i]mmediately 24 prior to the start of arbitration proceedings, OUSD and Ms. Lindsey communicate their desire to 25 settle, insisting Mr. Wilson make the first suggestion of a satisfactory monetary amount.” FAC 26 ¶¶ 48, 59. 27 For § 1983 actions, federal courts use the statute of limitations for personal injury actions 1 also apply state law “regarding tolling, including equitable tolling, except to the extent any of 2 these laws is inconsistent with federal law.” Id. (quoting Canatella v. Van De Kamp, 486 F.3d 3 1128, 1132 (9th Cir. 2007)). In California, equitable tolling can be applied where three factors are 4 met: “(1) timely notice to the defendant . . . ; (2) lack of prejudice to the defendant in gathering 5 evidence to defend . . . ; and (3) good faith and reasonable conduct by the plaintiff . . .” Hatfield v. 6 Halifax PLC, 564 F.3d 1177, 1185 (9th Cir. 2009) (citing Collier v. City of Pasadena, 142 Cal. 7 App. 3d 917, 924 (1983)). 8 The complaint fails to allege any of the factors for equitable tolling. First, Wilson does not 9 attempt to allege timely notice to the defendants. See Hatfield, 564 F.3d at 1185. It seems that 10 OUSD and Lindsey were notified of Wilson’s First Amendment claim for the first time during this 11 litigation, which was filed almost two years after the January 24 date he seeks for equitable tolling. 12 That relates to the third factor, good faith and reasonable conduct: even if Wilson was trying to 13 settle his discrimination claims between his April injury date and the January arbitration date, 14 there are no allegations about good faith or reasonable conduct with respect to his First 15 Amendment claim. Together these go to the prejudice factor—there are no allegations that 16 suggest that OUSD or Lindsey were on notice to gather evidence to defend against a retaliation 17 claim until Wilson amended his complaint to include such a claim in 2022. And while it is true 18 that under California law, equitable tolling is rarely denied at the motion to dismiss stage, see 19 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1140 (9th Cir. 2001) (citing 20 Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993)), the law does not suggest that a 21 plaintiff can plead this equitable relief wholly detached from the allegations in the complaint. 22 Indeed, in Daviton, the Ninth Circuit reversed the district court’s dismissal of the complaint 23 because it found that the “complaint shows that [the plaintiffs] are able to satisfy all the 24 requirements for equitable tolling under California law,” as the complaint included allegations that 25 went to all three factors. 241 F.3d at 1141-42; see also Cervantes, 5 F.3d at 1276-77 (same). 26 Here, there are no such allegations, despite Wilson’s opportunity for amendment. 27 At bottom, the problem with Wilson’s reliance on equitable tolling is that his chosen date 1 Amendment injury caused by Lindsey, which allegedly occurred on April 8, 2019, when he was 2 || fired by Lindsey for making protected statements. Wilson’s only allegations about January 24 3 were that Lindsey was there, that she decided to settle instead of arbitrate, and that she said Wilson 4 should make the first suggestion about the settlement amount. See FAC Jf 48, 59. None of this 5 goes to any of the equitable tolling factors, or even relates to his injury. 6 Accordingly, Wilson fails to allege that equitable tolling would apply to his otherwise time 7 || barred First Amendment claim. It is DISMISSED with prejudice, as he was already given the 8 opportunity to amend, and he points to no additional facts or explanations that he could plead in 9 another amended complaint to avoid dismissal. 10 CONCLUSION 11 For those reasons, the defendants’ motion is GRANTED with prejudice. 12 IT IS SO ORDERED. 5 13 || Dated: March 12, 2024 14 . l i ° 20 2 Iliam H. Orrick = 16 United States District Judge
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