11 JACQUELINE ZHANG, Case No. 17-CV-00007-LHK 12 Plaintiff, ORDER OVERRULING PLAINTIFF’S 13 OBJECTIONS TO REMEDIES ORDER v. AND DUE PROCESS ELEMENTS COUNTY OF MONTEREY, MONTEREY 15 COUNTY RESOURCE MANAGEMENT Re: Dkt. Nos. 194, 196, 208 AGENCY, and MONTEREY COUNTY
17 Defendants. 18 The Court issued rulings on all the parties’ motions in limine on May 4, 2021. ECF No. 19 128. The Court issued a Pretrial Conference Order on May 6, 2021, the date of the Pretrial 20 Conference. ECF No. 133. The parties have multiplied their disputes and engaged in voluminous 21 briefing after the Court’s rulings on the motions in limine and after the Pretrial Conference Order. 22 The parties have had countless opportunities to brief the elements and remedies of 23 Plaintiff’s due process claims.1 Below the Court names a few: 24 • Joint Pretrial Statement, ECF No. 106 25 26 1 Similarly, the parties have had ample opportunity to brief the petition for writ of mandate, which 27 will be judicially adjudicated. See e.g, ECF Nos. 125, 127, 131, 137, 141, and 142. 1 1 • Parties’ Trial Briefs, ECF Nos. 161 & 163 2 • Joint Statement Regarding Available Remedies, ECF No. 143 3 • Plaintiff’s Response to Defendant’s Objections re Monell, ECF No. 167 4 • Plaintiff’s Objection to Order re Vicarious and Respondeat Superior Liability, ECF 5 No. 197 6 • Plaintiff’s Errata Objection to Order re Vicarious and Respondeat Superior 7 Liability, ECF No. 198 8 • Parties’ Joint Proposed Jury Verdict Form and Objections to Proposed Jury Verdict 9 Forms, ECF No. 154 10 • Parties’ Revised Joint Proposed Jury Instructions, ECF No. 149 11 • Plaintiff’s Objections to Defendant’s Statement of Affirmative Defenses and 12 Related Jury Instructions, ECF No. 150 13 • Defendant’s Objection to Plaintiff’s Objections to Joint Proposed Jury Instructions, 14 ECF No. 152 15 • Plaintiff’s Response to Defendant’s Objection re: Joint Jury Instructions, ECF No. 16 155, accompanied by 93 page Declaration of Plaintiff’s Counsel, ECF No. 155-1 17 • Defendant’s Response to Plaintiff’s Objections to Defendant’s Statement of 18 Affirmative Defenses and Related Jury Instructions and Portion of Plaintiff’s 19 Response to Defendant’s Objection re: Joint Jury Instructions, ECF No. 159 20 • Defendant’s Reply to Plaintiff’s Response to Defendant’s Objection re: Joint Jury 21 Instructions, ECF No. 160 22 • Plaintiff’s Objection and Request for Determination of Facts, ECF No. 162 23 • Defendant’s Response to Plaintiff’s Objection and Request for Determination of 24 Facts, ECF No. 164 25 • Plaintiff’s Reply in Support of Request for Judicial Determination of Facts, ECF 26 No. 168 27 2 1 • Joint Proposed Jury Instructions, ECF No. 116 2 • Plaintiff’s Proposed Jury Instructions and Form of Verdict, ECF No. 120 3 • Defendant’s Proposed Jury Instructions and Verdict Form; Objections to Plaintiff’s 4 Proposed Jury Instructions and Verdict Forms, ECF No. 118 5 Because of the multiplicity of disputes after the Pretrial Conference, the Court has had to 6 issue the following orders to name a few: 7 • Order Granting Request for Judicial Adjudication of Petition for Writ of 8 Mandating and Denying Request to Decline Supplemental Jurisdiction, ECF No. 9 187 10 • Order re: Monell Liability, ECF No. 188 11 • Order re: Remedies for Due Process Claims, ECF No. 194 (“Remedies Order”) 12 • Order re: Vicarious and Respondeat Superior Liability, ECF No. 195 13 • Order re: Elements of Due Process Claims, ECF No. 196 (“Elements Order”) 14 • Order re: Plaintiff’s Objection to Order re: Vicarious and Respondeat Superior 15 Liability, ECF No. 199 16 • Order re: Defendants’ Objection to Plaintiff’s Designations of Deposition 17 Transcripts and Written Discovery and Plaintiff’s Errata Designation, ECF No. 18 200 19 • Order Sustaining Defendants’ Objection to Plaintiff’s Designations of Mariscal 20 Deposition Transcript, ECF No. 202 21 Despite the countless opportunities to brief the elements of the due process causes of 22 action and remedies, Plaintiff filed objections to the Court’s Remedies Order and Elements Order 23 and requested an opportunity to present yet additional authority. ECF No. 208. This filing is but 24 one of Plaintiff’s many objections to orders that the Court has already issued. See, e.g., ECF Nos. 25 197, 198. These objections are procedurally improper. Similarly, during trial Plaintiff’s Counsel 26 asserts objections on the record to nearly every Court evidentiary ruling. To object to the Court’s 27 3 1 rulings, Plaintiff may appeal to the U.S. Court of Appeals for the Ninth Circuit if Plaintiff is 2 unsatisfied with any verdict after trial. 3 The Court has considered the full record—including all the parties’ filings—in issuing its 4 orders. Every order of the Court is not an invitation to file yet another brief objecting to the 5 Court’s order. The parties have approximately five and half hours left of evidence in the trial. It is 6 time to present this case to the jury for closing arguments and deliberations. 7 Even though Plaintiff’s Objections were procedurally improper, ECF No. 208, the Court 8 nonetheless addresses them below. 9 Remedies Order 10 Plaintiff’s objections to the Remedies Order are meritless and misleading. Plaintiff relies 11 on an incomplete block-quote from Carey v. Piphus, 435 U.S. 247, 266 (1978), to argue that 12 Plaintiff is entitled to lost wages “regardless of the eventual outcome of some possible later 13 hearing.” ECF No. 208 at 2. 14 Carey held precisely the opposite. Carey held that if the plaintiffs’ “suspensions were 15 justified, [plaintiffs] nevertheless will be entitled to recover nominal damages not to exceed one 16 dollar.” Carey, 435 U.S. at 267 (emphasis added). Plaintiff conveniently omits this holding from 17 her block quote, which is a conspicuously incomplete sentence. Below, the Court quotes Carey 18 and bolds the sentence fragment that Zhang selectively quoted: 19 Because the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and 20 because of the importance to organized society that procedural due process be 21 observed, we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury. We therefore hold that if, upon 22 remand, the District Court determines that [plaintiffs’] suspensions were justified, 23 [plaintiffs] nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners. 24 Id. at 266–67 (citations and footnote omitted) (Plaintiff’s selective quotation bolded). 25 Indeed, the Comment to Ninth Circuit’s Model Civil Jury Instruction No. 9.2 confirms that 26 Plaintiff mischaracterized Carey. Citing Carey, the Comment provides that “when deprivation of a 27 4 1 protected interest is substantively justified but the procedures were deficient, a plaintiff must show 2 injury from the denial of procedural due process itself and cannot recover damages from the 3 justified deprivation.” Ninth Circuit Jury Instructions Committee, Manual of Model Civil Jury 4 Instructions at 125 (updated March 2021) (emphasis added). 5 Plaintiff also fails to distinguish Raditch v. United States, 929 F.2d 478 (9th Cir. 1991). 6 Contrary to Plaintiff’s assertion, Raditch’s holding was not limited to workers’ compensation 7 cases. Rather, Raditch’s holding applied to 42 U.S.C. § 1983 cases like Plaintiff’s. “[I]n § 1983 8 cases, a plaintiff can recover compensatory damages for a proven due process violation only if the 9 deprivation was unjustified on the merits.
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11 JACQUELINE ZHANG, Case No. 17-CV-00007-LHK 12 Plaintiff, ORDER OVERRULING PLAINTIFF’S 13 OBJECTIONS TO REMEDIES ORDER v. AND DUE PROCESS ELEMENTS COUNTY OF MONTEREY, MONTEREY 15 COUNTY RESOURCE MANAGEMENT Re: Dkt. Nos. 194, 196, 208 AGENCY, and MONTEREY COUNTY
17 Defendants. 18 The Court issued rulings on all the parties’ motions in limine on May 4, 2021. ECF No. 19 128. The Court issued a Pretrial Conference Order on May 6, 2021, the date of the Pretrial 20 Conference. ECF No. 133. The parties have multiplied their disputes and engaged in voluminous 21 briefing after the Court’s rulings on the motions in limine and after the Pretrial Conference Order. 22 The parties have had countless opportunities to brief the elements and remedies of 23 Plaintiff’s due process claims.1 Below the Court names a few: 24 • Joint Pretrial Statement, ECF No. 106 25 26 1 Similarly, the parties have had ample opportunity to brief the petition for writ of mandate, which 27 will be judicially adjudicated. See e.g, ECF Nos. 125, 127, 131, 137, 141, and 142. 1 1 • Parties’ Trial Briefs, ECF Nos. 161 & 163 2 • Joint Statement Regarding Available Remedies, ECF No. 143 3 • Plaintiff’s Response to Defendant’s Objections re Monell, ECF No. 167 4 • Plaintiff’s Objection to Order re Vicarious and Respondeat Superior Liability, ECF 5 No. 197 6 • Plaintiff’s Errata Objection to Order re Vicarious and Respondeat Superior 7 Liability, ECF No. 198 8 • Parties’ Joint Proposed Jury Verdict Form and Objections to Proposed Jury Verdict 9 Forms, ECF No. 154 10 • Parties’ Revised Joint Proposed Jury Instructions, ECF No. 149 11 • Plaintiff’s Objections to Defendant’s Statement of Affirmative Defenses and 12 Related Jury Instructions, ECF No. 150 13 • Defendant’s Objection to Plaintiff’s Objections to Joint Proposed Jury Instructions, 14 ECF No. 152 15 • Plaintiff’s Response to Defendant’s Objection re: Joint Jury Instructions, ECF No. 16 155, accompanied by 93 page Declaration of Plaintiff’s Counsel, ECF No. 155-1 17 • Defendant’s Response to Plaintiff’s Objections to Defendant’s Statement of 18 Affirmative Defenses and Related Jury Instructions and Portion of Plaintiff’s 19 Response to Defendant’s Objection re: Joint Jury Instructions, ECF No. 159 20 • Defendant’s Reply to Plaintiff’s Response to Defendant’s Objection re: Joint Jury 21 Instructions, ECF No. 160 22 • Plaintiff’s Objection and Request for Determination of Facts, ECF No. 162 23 • Defendant’s Response to Plaintiff’s Objection and Request for Determination of 24 Facts, ECF No. 164 25 • Plaintiff’s Reply in Support of Request for Judicial Determination of Facts, ECF 26 No. 168 27 2 1 • Joint Proposed Jury Instructions, ECF No. 116 2 • Plaintiff’s Proposed Jury Instructions and Form of Verdict, ECF No. 120 3 • Defendant’s Proposed Jury Instructions and Verdict Form; Objections to Plaintiff’s 4 Proposed Jury Instructions and Verdict Forms, ECF No. 118 5 Because of the multiplicity of disputes after the Pretrial Conference, the Court has had to 6 issue the following orders to name a few: 7 • Order Granting Request for Judicial Adjudication of Petition for Writ of 8 Mandating and Denying Request to Decline Supplemental Jurisdiction, ECF No. 9 187 10 • Order re: Monell Liability, ECF No. 188 11 • Order re: Remedies for Due Process Claims, ECF No. 194 (“Remedies Order”) 12 • Order re: Vicarious and Respondeat Superior Liability, ECF No. 195 13 • Order re: Elements of Due Process Claims, ECF No. 196 (“Elements Order”) 14 • Order re: Plaintiff’s Objection to Order re: Vicarious and Respondeat Superior 15 Liability, ECF No. 199 16 • Order re: Defendants’ Objection to Plaintiff’s Designations of Deposition 17 Transcripts and Written Discovery and Plaintiff’s Errata Designation, ECF No. 18 200 19 • Order Sustaining Defendants’ Objection to Plaintiff’s Designations of Mariscal 20 Deposition Transcript, ECF No. 202 21 Despite the countless opportunities to brief the elements of the due process causes of 22 action and remedies, Plaintiff filed objections to the Court’s Remedies Order and Elements Order 23 and requested an opportunity to present yet additional authority. ECF No. 208. This filing is but 24 one of Plaintiff’s many objections to orders that the Court has already issued. See, e.g., ECF Nos. 25 197, 198. These objections are procedurally improper. Similarly, during trial Plaintiff’s Counsel 26 asserts objections on the record to nearly every Court evidentiary ruling. To object to the Court’s 27 3 1 rulings, Plaintiff may appeal to the U.S. Court of Appeals for the Ninth Circuit if Plaintiff is 2 unsatisfied with any verdict after trial. 3 The Court has considered the full record—including all the parties’ filings—in issuing its 4 orders. Every order of the Court is not an invitation to file yet another brief objecting to the 5 Court’s order. The parties have approximately five and half hours left of evidence in the trial. It is 6 time to present this case to the jury for closing arguments and deliberations. 7 Even though Plaintiff’s Objections were procedurally improper, ECF No. 208, the Court 8 nonetheless addresses them below. 9 Remedies Order 10 Plaintiff’s objections to the Remedies Order are meritless and misleading. Plaintiff relies 11 on an incomplete block-quote from Carey v. Piphus, 435 U.S. 247, 266 (1978), to argue that 12 Plaintiff is entitled to lost wages “regardless of the eventual outcome of some possible later 13 hearing.” ECF No. 208 at 2. 14 Carey held precisely the opposite. Carey held that if the plaintiffs’ “suspensions were 15 justified, [plaintiffs] nevertheless will be entitled to recover nominal damages not to exceed one 16 dollar.” Carey, 435 U.S. at 267 (emphasis added). Plaintiff conveniently omits this holding from 17 her block quote, which is a conspicuously incomplete sentence. Below, the Court quotes Carey 18 and bolds the sentence fragment that Zhang selectively quoted: 19 Because the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and 20 because of the importance to organized society that procedural due process be 21 observed, we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury. We therefore hold that if, upon 22 remand, the District Court determines that [plaintiffs’] suspensions were justified, 23 [plaintiffs] nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners. 24 Id. at 266–67 (citations and footnote omitted) (Plaintiff’s selective quotation bolded). 25 Indeed, the Comment to Ninth Circuit’s Model Civil Jury Instruction No. 9.2 confirms that 26 Plaintiff mischaracterized Carey. Citing Carey, the Comment provides that “when deprivation of a 27 4 1 protected interest is substantively justified but the procedures were deficient, a plaintiff must show 2 injury from the denial of procedural due process itself and cannot recover damages from the 3 justified deprivation.” Ninth Circuit Jury Instructions Committee, Manual of Model Civil Jury 4 Instructions at 125 (updated March 2021) (emphasis added). 5 Plaintiff also fails to distinguish Raditch v. United States, 929 F.2d 478 (9th Cir. 1991). 6 Contrary to Plaintiff’s assertion, Raditch’s holding was not limited to workers’ compensation 7 cases. Rather, Raditch’s holding applied to 42 U.S.C. § 1983 cases like Plaintiff’s. “[I]n § 1983 8 cases, a plaintiff can recover compensatory damages for a proven due process violation only if the 9 deprivation was unjustified on the merits. If, after postdeprivation procedure, it is determined that 10 the deprivation was justified, a plaintiff can recover only nominal damages for the due process 11 violation.” Id. at 482 n.5. 12 In any event, federal courts also reach the same conclusion in employment cases alleging 13 violations of federal procedural due process. As the Fifth Circuit has held, “[i]f the defendants can 14 prove that [plaintiff] would have been dismissed [] absent procedural defects, then she will not be 15 entitled to recover for lost back pay. If, however, the defendants fail to prove that [plaintiff] would 16 have been dismissed [] absent procedural defects, [plaintiff] will be entitled to back pay from [the 17 date of dismissal] until [the date plaintiff received due process].” Wheeler v. Mental Health & 18 Mental Retardation Auth. of Harris Cty., Tex., 752 F.2d 1063, 1071–72 (5th Cir. 1985). Courts in 19 this district have held the same. See, e.g., Collier v. Windsor Fire Prot. Dist. Bd. of Directors, No. 20 08-CV-02582-PJH, 2011 WL 4635036, at *7 (N.D. Cal. Oct. 6, 2011) (conditioning backpay on 21 outcome of later hearing); Walls v. Cent. Contra Costa Transit Auth., No. 08-CV-0224-PJH, 2012 22 WL 581362, at *5 (N.D. Cal. Feb. 22, 2012) (same). Accordingly, the Court OVERRULES 23 Plaintiff’s objections to the Remedies Order. 24 Elements Order 25 As to the Elements Order, Plaintiff argues she can derive a property interest in her 26 employment as a government employee from a contract, express or implied. Ninth Circuit and 27 5 1 California precedent forecloses Plaintiff's argument. Ninth Circuit precedent (cited in the 2 || Elements Order at 3) specifically provides that: 3 A government employee is not entitled to due process based on deprivation of property, when removed from a position, unless the employee has “a legitimate 4 claim of entitlement” to the position. Board of Regents v. Roth, 408 U.S. 564, 577 5 (1972). The position holder needs “an individual entitlement grounded in state law, which cannot be removed except ‘for cause,’” Logan v. Zimmerman Brush Co., 455 6 U.S. 422, 430 (1982), in order to establish a deprivation of due process. Under 7 California law, county charters, rules and regulations generally determine whether there is such an entitlement. Cal. Const. art. 11, § 4); American Fed’n of State, 8 County & Mun. Employees Local 685 vy. Los Angeles County, 194 Cal. Rptr. 540, 9 546 (Ct. App. 1983). 10 Weisbuch vy. Cty. of Los Angeles, 119 F.3d 778, 780-81 (9th Cir. 1997); accord Faurie v. Berkeley 11 Unified School Dist., 2008 WL 820682, at *8—9 (N.D. Cal. Mar. 26, 2008) (holding same and
= 12 || collecting cases).
413 California precedent confirms that, as to public employment in California, “the extent of
14 || the protected interest or entitlement (i.e., the terms and conditions of employment) is governed
O 15 purely by statute.” Am. Fed’n of State etc. Emps., 194 Cal. Rptr. at 546. In other words,
5 16 || employees’ “remedies, if any, [are] confined to those provided by statute or ordinance.” Kim v.
3 17. || Regents of Univ. of California, 80 Cal. App. 4th 160, 164 (Ct. App. 2000) (quoting Hill v. City of 1g || Long Beach, 33 Cal. App. 4th 1684, 1690 (Ct. App. 1995)). Thus, California’s public employees 19 “cannot state a cause of action for breach of contract or breach of the implied covenant of good 20 faith and fair dealing.” Kim v. Regents of Univ. of California, 80 Cal. App. 4th 160, 164 (Ct. App. 2] 2000). Accordingly, the Court OVERRULES Plaintiff’s objections to the Elements Order. 92 || IT ISSO ORDERED. 23 Dated: June 8, 2021 24 Fey Hh LUCY @. KOH 25 United States District Judge 26 27 28 Case No. 17-CV-00007-LHK ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO REMEDIES ORDER AND DUE PROCESS