UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Case :-cv-0-dsf -JEM Document Filed 0// Page of Page ID #:0 Elizabeth M. Kessel, Esq. (SBN 0 Elizabeth R. Engelberg, Esq. (SBN 0 Rebecca S. Hutton, Esq. (SBN 0 0 Beverly Boulevard Los Angeles, California 00 Tel: ( -00; Fax: ( - Attorneys for Defendant, RICHARD BECKMAN 0 Beverly Boulevard Los Angeles, California Tel. No.: ( JEFFREY ROY, vs. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiff, CITY OF SAN GABRIEL, a municipal corporation; JOSEPH B. NESTOR, individually and as Fire Chief; RICHARD BECKMAN, individually and as Battalion Chief; BRYAN FRIEDERS; individually and as Battalion Chief; and DOES THROUGH 0, Defendants. CASE NO. CV -0 DSF (JEMx Action filed: September, 0 Assigned to: Hon. Dale S. Fischer DEFENDANT RICHARD BECKMAN S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (Fed.R.Civ.P (b(; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS IN SUPPORT THEREOF Date: November, 0 Time: :0 p.m. Place: Courtroom 0 TO PLAINTIFF JEFFREY ROY AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on November, 0 at :0 p.m., or as soon thereafter as the matter may be heard in Courtroom 0 in the above entitled Court, located at the Edward R. Roybal Federal Building, E. Temple Street, Los Angeles, CASE NO. CV -0 DSF (JEMx

2 Case :-cv-0-dsf -JEM Document Filed 0// Page of Page ID #:0 0 Beverly Boulevard Los Angeles, California Tel. No.: ( California, defendant Richard Beckman will move this Court for an order to dismiss plaintiff s Complaint. This motion is brought pursuant to the Federal Rules of Civil Procedure Rule (b( on the following grounds:. Plaintiff fails to state a claim upon which relief can be granted against Defendant Beckman as to his first, third and fourth claims for relief under Section, The Ralph Civil Rights Act, and the Bane Act, respectively. Plaintiff s allegations are couched in conclusory terms and fail to set forth any substantive facts against this defendant.. The first, third and fourth claims for relief are barred by Defendant Beckman s qualified immunity.. Plaintiff fails to set forth any facts to support his claim for punitive damages.. The Court may dismiss the supplemental state law claims pursuant to U.S.C. after dismissal of plaintiff s Section claim. This motion is based on this notice, the accompanying memorandum of points and authorities, the declaration of Elizabeth R. Engelberg, filed concurrently herewith, the records and files in this action, and any oral or documentary evidence as may be permitted at or before the time set for hearing on this motion. A pre-filing conference of counsel pursuant to Local Rule - was attempted on September st and nd as set forth more fully in the Engelberg Declaration attached hereto. Dated: September, 0 By: /s/ ELIZABETH R. ENGELBERG ELIZABETH M. KESSEL ELIZABETH R. ENGELBERG REBECCA S. HUTTON Attorneys for Defendant, RICHARD BECKMAN CASE NO. CV -0 DSF (JEMx

3 Case :-cv-0-dsf -JEM Document Filed 0// Page of Page ID #:0 TABLE OF CONTENTS Page Memorandum of Points and Authorities... I. Introduction... II. Facts... III. Argument:... 0 Beverly Boulevard Los Angeles, California Tel. No.: ( A. Plaintiff Fails to State A Claim Upon Which Relief Can Be Granted... B. Plaintiff Fails To Plead Facially Plausible Facts To Support A Section Claim For Relief..... Plaintiff s First Amendment Violation Claim Lacks Facts Sufficient To Set Forth A Plausible Claim For Relief.... Plaintiff s Fourteenth Amendment Claim Lacks Facts Sufficient To Set Forth a Plausible Claim For Relief C. Plaintiff Fails to State A Plausible Claim For Relief Under the Ralph Act.... D. Plaintiff Fails To State A Plausible Claim For Relief Under the Bane Act.... E. Defendant Beckman Enjoys Qualified Immunity... F. Punitive Damages... IV. Conclusion... i CASE NO. CV -0 DSF (JEMx

4 Case :-cv-0-dsf -JEM Document Filed 0// Page of Page ID #:0 0 Cases TABLE OF AUTHORITIES Page(s Ashcroft v. Iqbal U.S..,, S. Ct. (00...,,,, Barnes v. County of Placer F.Supp.d 0 (E.D. Cal Bell Atlantic Corp v. Twombly 0 U.S. (00...,,,,, City of Oklahoma v. Tuttle U.S. 0 (... 0 Beverly Boulevard Los Angeles, California Tel. No.: ( De La Cruz v. Tormey F.d ( th Cir.,... Desrochers v. City of San Bernardino F.d 0 ( th Cir Eng v. Cooley F.d 0 ( th Cir ,, 0 Garcetti v. Ceballos U.S. 0 (00..., 0 Groh v. Ramirez 0 U.S. (00... Harlow v. Fitzgerald U.S. 00 (... Hunter v. Bryant 0 U.S. (..., Kentucky v. Graham U.S. (... /// ii CASE NO. CV -0 DSF (JEMx

5 Case :-cv-0-dsf -JEM Document Filed 0// Page of Page ID #: Federal Cases (Cont d Page(s Keyser v. Sacramento City Unified School Dist. F.d ( th Cir Leatherman v. Tarrant County NICU 0 U.S. (... Lee v. City of Los Angeles 0 F.d ( th Cir Beverly Boulevard Los Angeles, California Tel. No.: ( Monell v. Department of Social Services U.S. (... Moran v. State of Washington F.d (... Mitchell v. Forsyth U.S. (... Mututal Ins. Co. v. Sullivan U.S. 0 (... Pearson v. Callahan s. Ct. 0 (00... Reese v. Jefferson School Dist. No. J 0 F.d ( th Cir Reynolds v. County of San Diego F.d ( th Cir.... Shroyer v. New Cingular Wireless Services Inc. F.d 0 ( th Cir Village of Willowbrook v. Olech U.S. ( /// /// iii CASE NO. CV -0 DSF (JEMx

6 Case :-cv-0-dsf -JEM Document Filed 0// Page of Page ID #: California Cases Page(s Jones v. Kmart Corp. ( Cal. th... Federal Statutes U.S.C.... U.S.C....,,, 0 Beverly Boulevard Los Angeles, California Tel. No.: ( Federal Rules of Civil Procedure: (b(... California Statutes Civil Code:...., Government Code: iv CASE NO. CV -0 DSF (JEMx

7 Case :-cv-0-dsf -JEM Document Filed 0// Page of Page ID #: 0 Beverly Boulevard Los Angeles, California Tel. No.: ( MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction: This motion stems from a complaint for vague employment-related allegations wherein plaintiff s stated goal is to receive a promotion, monetary compensation, attorney s fees and punitive damages. The complaint is nearly completely devoid of facts, rather it is filled with legal conclusions and sweeping statements such as defendants retaliated against and harassed plaintiff. This is insufficient under the law and does not meet current pleading standards. As to this moving defendant, Richard Beckman, there are few actual facts alleged plaintiff alleges Mr. Beckman is a Battalion Chief with the San Gabriel Fire Department; that plaintiff filed a grievance against Mr. Beckman in April 00 for an alleged HIPPA violation; that Mr. Beckman along with the other defendants continually retaliated against and harassed plaintiff; and that Mr. Beckman made statements (to whom, when, or in what context is not plead that he would screw over everybody on the executive board. All other claims/facts are alleged against other defendants individually without mention of Mr. Beckman or are alleged as to all defendants in broad terms without any sort of specificity as to who did what and when. Although plaintiff sues under Section for violations of his First and Fourteenth Amendment rights, the Complaint is devoid of facts to support plaintiff s claim that he engaged in protected speech, was a member of a protected class or was treated differently than others similarly situated, or whether the plaintiff spoke on a matter of public concern, whether the plaintiff spoke as a private citizen or public employee and whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action. Regarding plaintiff s supplemental state law claims, there are no facts concerning acts of violence or threats of violence made to plaintiff by Mr. Beckman at or during the relevant time period. Finally, there are no facts alleged to support plaintiff s claim for punitive damages plaintiff must do more than simply set forth conclusory pleading language that the acts alleged were taken with conscious CASE NO. CV -0 DSF (JEMx

8 Case :-cv-0-dsf -JEM Document Filed 0// Page of Page ID #: 0 Beverly Boulevard Los Angeles, California Tel. No.: ( disregard and with intent to vex, injure or annoy so as to constitute oppression, fraud or malice he must allege facts sufficient to support this claim for damages but he fails to do so. To the extent that Mr. Beckman is protected by qualified immunity, plaintiff s claims must be dismissed. II. Facts: Plaintiff alleges the following facts in his complaint. The facts are vague and rarely address Defendant Beckman with any specificity. These facts, as stated below, do not raise a right for relief beyond the speculative level against Defendant Beckman. Notably, there are only two specific mentions of alleged acts by Defendant Beckman and neither is sufficient to constitute a claim for relief under any of the statutes identified by plaintiff. At all relevant times, plaintiff alleges he is and was employed by the City of San Gabriel and he is a resident of Orange County. (Complaint. Defendant City of San Gabriel is alleged to be a municipal corporation, with the San Gabriel Fire Department operating as a department of the City of San Gabriel. The City of San Gabriel allegedly delegated its final policy making decisions to defendants Nestor, Beckman and Frieders, and the City adopted and ratified said decisions as its own policies, customs, practices or decisions. (Complaint Plaintiff alleges Defendant Nestor is the Fire Chief for the Fire Department and acted under color of state law, within the course and scope of his employment and as an official policy maker for the City, and as Department head, Defendant Nestor is allegedly vested with policy making authority over the actions alleged in the complaint. (Complaint. Defendants Beckman and Frieders are alleged by plaintiff to have been Battalion Chiefs at all relevant times for the San Gabriel Fire Department and acted under color of state law, within the course and scope of their employment and as official policy makers for the City. (Complaint Plaintiff further alleges all defendants were the agents, employees, servants of every other defendant and acted in the course and scope of that relationship at all times. (Complaint CASE NO. CV -0 DSF (JEMx

9 Case :-cv-0-dsf -JEM Document Filed 0// Page of Page ID #: 0 Beverly Boulevard Los Angeles, California Tel. No.: ( Plaintiff alleges that in or about January or February 00, defendants established a promotional list for the position of Battalion Chief. (Complaint. Of the five candidates who took the test for the promotional list, only two passed, including defendant Frieders and plaintiff. Plaintiff alleges defendant Frieders was promoted and he remained on the eligibility list. Plaintiff further alleges the eligibility list remains open for one year, and can be extended for another two six-month periods for a total of two years. (Complaint. Plaintiff alleges he was elected to the Union Executive Board as its Vice President. Plaintiff further alleges that beginning almost immediately he met with Defendant Nestor to discuss Union plans and express his desire to work with Defendant Nestor. Plaintiff claims Defendant Nestor made comments during the meeting that referenced plaintiff s activities on the Union Board and the impact on his promote-ability. These comments were, it will be interesting to see you handle this and being the Union Vice President and being on the Battalion Chief list. (Complaint. Plaintiff alleges Defendant Nestor threatened him with these comments to not rock the boat. (Complaint Plaintiff alleges the Battalion Chief eligibility list was extended by six months in January 00. (Complaint 0. Beginning in early 00 through 00, plaintiff alleges numerous personnel issues arose between Battalion Chiefs and members of the Association. (Complaint. Plaintiff further alleges he upheld his Union position and acted on the members behalf and represented them in their matters, which caused him to become a target of harassment and retaliation including an investigation into a comment he wrote to a contract employee regarding the inappropriate manner in which she was treated by a Battalion Chief. (Complaint. Plaintiff alleges that Defendant Nestor later made a statement to plaintiff indicating he should have not disclosed the misconduct and plaintiff infers this meant Defendant Nestor expected his Battalion Chiefs to cover up internal corruption and that Defendant Nestor was upset with plaintiff. (Complaint. Plaintiff alleges he filed a formal complaint about the allegedly inappropriate actions, harassment and abuse by Defendant Frieders. (Complaint. Plaintiff further alleges CASE NO. CV -0 DSF (JEMx

10 Case :-cv-0-dsf -JEM Document #: Filed 0// Page 0 of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( since that time, Defendants Frieders, Beckman and Nestor have continually retaliated and harassed plaintiff. (Complaint. Plaintiff alleges he was threatened and received statements such as I will see to it that you don t become a BC. (Complaint Plaintiff does not allege who made such statements or any particulars as to the retaliation or harassment. Plaintiff alleges he was not allowed to take part in department activities and that this puts him at a disadvantage for the next promotional testing. (Complaint. Plaintiff further alleges in 00 he filed various grievances, made various disclosures involving violations of state and federal laws and involved matters of public concerns and engaged in protected activities such as union activities. (Complaint In April 00, plaintiff alleges he filed a grievance over vacation accrual. In the same month, he filed a grievance against Defendant Beckman about an alleged HIPPA violation. In May 00, plaintiff alleges he engaged in Union activities regarding negotiations between the City and the Association and made statements about Defendant Nestor s budget and firefighter safety. (Complaint. Plaintiff alleges he was retaliated against for these activities. (Complaint Plaintiff does not state what the retaliation was. Plaintiff alleges on July, 00 the eligibility list expired and was not renewed. (Complaint. In August 00, plaintiff alleges he filed a complaint regarding an unsafe work environment to the City Manager after Defendant Nestor did not act upon it. (Complaint. In September 00, plaintiff alleges he was passed over for a provisional Battalion Chief position. Plaintiff alleges Defendant Nestor made the provisional appointment to someone else out of retaliation and in violation of civil service rules. (Complaint Plaintiff claims these actions have resulted in his missing out on numerous promotional activities within the department. Plaintiff further alleges these actions were taken by Defendants out of retaliation, hatred and spite and with the intent to injure him. (Complaint. Plaintiff further alleges that Defendant Nestor was made aware of the retaliation, discrimination and harassment but failed to act and made a conscious decision to not intervene. (Complaint. Count One: USC (Against All Defendants CASE NO. CV -0 DSF (JEMx

11 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( Plaintiff incorporates his allegations in paragraphs - of the complaint. (Complaint. Plaintiff alleges Defendants retaliated against him by taking the actions alleged in paragraphs - due to his protected disclosures. (Complaint. Plaintiff further alleges Defendants took their aforementioned adverse actions against him due to his exercise of his constitutional right to free speech, his right to seek redress, participating in labor, organizational, associational, social and political activities as a member of the Union. (Complaint. Absent his protected speech, plaintiff alleges he would not have suffered adverse employment actions and would not have been harmed. (Complaint. Plaintiff further alleges the various acts of intimidation, reprisal, retaliation, suppression and/or restraint by Defendants created a chilling effect on his political, social, organizational speech by creating fear, hesitation, hostility and other destructive responses. (Complaint Plaintiff alleges the Defendants violated his rights under the First and Fourteenth Amendments of the US Constitution to free expression, association and assembly. (Complaint 0. Plaintiff alleges based on information and belief that Defendants acted under color of state law and as final policy making authorities to which Defendant City delegated its governing powers. (Complaint. Plaintiff further alleges it should have been plain to any reasonable policy making official of Defendant City that the acts and omissions of the other Defendants as alleged in the complaint, directly violated and continued to violated plaintiff s constitutional rights. (Complaint Plaintiff further alleges defendants acted with malicious intent to violate his rights or at least with conscious, reckless and callous disregard of his rights and to the consequences likely to result from the alleged violations of his rights. (Complaint Plaintiff seeks general, special and punitive damages, as well as permanent injunctions and immediate promotion. (Complaint,. Count Three Civil Code. The Ralph Civil Rights Act (Against All Defendants CASE NO. CV -0 DSF (JEMx

12 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( Plaintiff incorporates paragraphs -. (Complaint. Plaintiff alleges he was a member of the Executive Board of the Fire Association Union and participated in numerous disclosures to Defendant Nestor and other City officials regarding Defendants Beckman and Frieders alleged retaliatory acts. (Complaint. Plaintiff alleges as such he is a member of a group protected by Civil Code.. (Complaint Plaintiff further alleges Defendants threatened violent acts against him and his property interest in employment with the City. Without alleging any particulars, Plaintiff alleges Defendant Beckman stated he was going to make sure he fucks over everybody on the executive board and that he is going to shove the association so far up the executive board s ass they won t know what to do. (Complaint. Plaintiff further alleges Defendants Nestor and Frieders also indicated they would retaliate against all individual who made protected disclosures. (Complaint Plaintiff alleges upon information and belief that Defendants motivation for their conduct included their perception of plaintiff s political affiliation with his labor organizational, social and political activities. (Complaint. Plaintiff alleges he was harmed by Defendants conduct. (Complaint. Plaintiff further alleges the acts were carried out against him with conscious disregard of his rights and with the intent to vex, injure and annoy him such as to constitute oppression, fraud or malice pursuant to California Civil Code. (Complaint. Plaintiff seeks punitive damages against the non-municipal defendants. (Complaint. Count Four Civil Code. The Bane Act (Against All Defendants Plaintiff incorporates paragraphs -. (Complaint Plaintiff alleges he is and was a member and Executive Board member of the Firefighter Association Union and is a member of a group protected by Civil Code.. Plaintiff further alleges Defendants interfered with and or attempted to interfere with his constitutional and statutory rights including the right to be free from unlawful retaliation, to seek redress, and to testify in proceedings, to participate in labor organizational, social and political activities and to exercise his right to free speech. (Complaint Plaintiff further alleges he reasonably believed if he exercised his rights Defendants would commit violence against him or his CASE NO. CV -0 DSF (JEMx

13 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( property, or retaliate against him. (Complaint. Plaintiff alleges he was harmed by Defendants conduct, which was a substantial factor in his harm. (Complaint As a result, plaintiff seeks recovery of his attorney s fees, as well as punitive damages. (Complaint,. Plaintiff alleges defendants acts were carried out with a conscious disregard to his rights, and with the intent to injure, vex, annoy him so as to constitute oppression, fraud or malice. (Complaint III. Argument: A. Plaintiff Fails To State A Claim Upon Which Relief Can Be Granted F.R.C.P. Rule (b( provides that a motion to dismiss may be brought on the grounds of failure to state a claim upon which relief can be granted. A Rule (b( tests the legal sufficiency of the claim or claims stated in the complaint. De La Cruz v. Tormey F.d, ( th Cir.. Dismissal under Rule (b( is proper when the complaint fails to allege either a cognizable legal theory or absence of sufficient facts alleged under a cognizable legal theory. Shroyer v. New Cingular Wireless Services Inc. F.d 0, 0 ( th Cir. 00. Further, in order to survive a motion to dismiss, the facts alleged must state a facially plausible claim for relief. Shroyer, supra at 0; Bell Atlantic Corp v. Twombly 0 U.S., S.Ct. (00; Ashcroft v. Iqbal U.S.,, S.Ct. (00. Plausibility serves a gate keeping function. The Twombly/Iqbal standard requires a complaint to contain sufficient factual allegations to show a plausible claim for relief. Twombly/Iqbal teaches that a defendant should not be forced to undergo costly discovery unless the complaint contains enough detail... to indicate that the plaintiff has a substantial case. The factual allegations in a complaint must be enough to raise a right to relief above the speculative level on the assumption that that all the allegations in the complaint are true (even if doubtful in fact. In short, it must allege enough facts to state a claim to relief that is plausible on its face. Twombly, supra, 0 U.S., -, 0. In determining the plausibility of a complaint, the Court must first identify which statements in the complaint are factual allegations and which are legal conclusions. Legal CASE NO. CV -0 DSF (JEMx

14 Case :-cv-0-dsf -JEM Document #:0 Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( conclusions are not assumed to be true and are insufficient to create plausibility of a complaint. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a formulaic recitation of the elements of a constitutional discrimination claim [citation omitted] As such, the allegations are conclusory and not entitled to be assumed true. Twombly, supra, 0 U.S. at -, S.Ct.. It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth. Iqbal, supra, S.Ct.,. Here, plaintiffs complaint does not pass the Twombly/Iqbal standard of plausibility as key allegations are devoid of any facts and instead are merely formulaic recitation of the elements. Further, plaintiff Beckman cannot be held vicariously liable for the alleged acts of any other defendant under Section. Iqbal, supra, S.Ct at -. Nor can Defendant Beckman be held vicariously liable under California law. Government Code 0.. As discussed further below, plaintiff s first, third and fourth claims for relief do not meet pleading requirements and must be dismissed. B. Plaintiff Fails To Plead Facially Plausible Facts To Support A Section Claim For Relief. Plaintiff s First Amendment Violation Claim Lacks Facts Sufficient To Set Forth a Plausible Claim For Relief In order to state a claim pursuant to U.S.C., plaintiff must allege the deprivation of a Constitutional right under the color of state law. American Manufacturers Mutual Ins. Co. v. Sullivan, U.S. 0, (. In the case of a public employee, as plaintiff alleges he is, with a First Amendment retaliation claim, the Court must conduct a five-step inquiry. Eng v. Cooley, F.d 0, 00 (th Cir. 00; Garcetti v. Ceballos U.S. 0, 0, S.Ct. (00. First, plaintiff bears the burden of showing: ( whether the plaintiff spoke on a matter of public concern, ( whether the plaintiff spoke as a private citizen or public employee and ( whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action. CASE NO. CV -0 DSF (JEMx

15 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( Id. If the plaintiff satisfies the first three steps, the burden shifts to the government to show ( whether the state had an adequate justification for treating the employee differently from other members of the general public and ( whether the state would have taken the adverse employment action regardless of the protected speech. Id. In order to demonstrate causation, plaintiff must allege facts showing that the decision maker was aware of the protected activity. Keyser v. Sacramento City Unified School Dist., F.d, C.A. ( th Cir.00. Lawsuits against a local governmental body must allege a policy or custom of unconstitutional conduct. Monell v. Department of Social Services U.S., S.Ct. 0; L.Ed.d (; Leatherman v. Tarrant County NICU 0 U.S. ; S.Ct. 0, L.Ed.d (. The fact that a single unconstitutional violation occurred is not sufficient to show an unconstitutional policy, custom or practice. City of Oklahoma City v. Tuttle, U.S. 0, -; 0 S.Ct., L.Ed.d (. The Complaint does not specify the capacity in which the individual defendants are sued. To the extent they are sued in their official capacities, the standard for imposing liability is the same as for a municipality. Kentucky v. Graham U.S.,, 0 S.Ct. 0, L.Ed.d (. Plaintiff has failed to allege any facts, as opposed to conclusions, that the City or individual defendants acting within their official capacities acted pursuant to an unconstitutional policy, custom or practice. Here, plaintiff fails to allege facts sufficient to meet the elements required for a claim of First Amendment retaliation by a public employee. There are no facts as to how Mr. Beckman violated plaintiff s First Amendment rights. The acts undertaken by plaintiff with respect to his Union activities are unclear as to whether he was acting as a private citizen or a public employee or whether his speech was on a matter of public concern. Eng, supra, F.d at 00. As for the grievances alleged in paragraph, it is clear that plaintiff was acting on his own behalf in the context of his employment. These grievances do not qualify as protected speech under the Eng factors. When public employees make statements pursuant to their official duties, the employees are not CASE NO. CV -0 DSF (JEMx

16 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Garcetti v. Ceballos, supra, U.S. at 0. Plaintiff s allegation in paragraph that he filed a grievance against Beckman for a HIPPA violation is not a matter of public concern. Nor is the fact alleged in paragraph that Mr. Beckman was employed as a Battalion Chief. The allegations that Beckman retaliated and harassed plaintiff (para is simply a legal conclusion devoid of any facts and therefore cannot confer a matter of public concern. Where an employee speaks on a matter of personal interest, he is not speaking as a citizen for First Amendment purposes. See, Desrochers v. City of San Bernardino, F.d 0, 0 ( th Cir. 00. Speech that deals with individual personnel disputes and grievances and that would be of no relevance to the public s evaluation of the performance of governmental agencies is generally not of public concern. Desrochers, supra at 0. Reading plaintiff s complaint in a light most favorable to plaintiff, the complaint is incredibly vague as to whether he engaged in his alleged protected speech (which he simply labels as protected in a conclusory manner as a private citizen, or as a public employee. If the allegations demonstrate an official duty to utter the speech at issue, then the speech is unprotected. Eng, supra at 0. There are no allegations against Mr. Beckman specifically that deal with any protected speech, or plaintiff s union activities. The only references to Mr. Beckman as to the first Count are that Mr. Beckman was employed by the City of San Gabriel as a Battalion Chief (, that plaintiff filed a grievance against Mr. Beckman for an alleged HIPPA violation ( and the conclusory statement that Mr. Beckman continually retaliated against and harassed plaintiff (. The allegations in paragraphs and have no bearing on plaintiff s First Amendment violation allegations and plaintiff provides no causal link between these alleged facts and any alleged retaliation or harassment. These facts are devoid of meaning as to the complaint as a whole. The allegations concerning the eligibility list make no mention of Defendant Beckman, his knowledge of said list or his involvement, if any, in the creation, maintenance, or even authority to promote from that list. As for the allegations in 0 CASE NO. CV -0 DSF (JEMx

17 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( paragraph, these alleged facts do not support a plausible claim for relief for a First Amendment violation. None of the allegations in paragraph contain specific facts and raise far more questions than a defendant should have to speculate to on a complaint against him. For example, who made the statement I will see to it that you don t become a BC? The complaint is completely lacking in the who-what-where-when facts that would illuminate something beyond a legal conclusion. There are no facts surrounding this alleged statement or how it factors into plaintiff s first claim for relief, nor does it create a plausible claim for relief on its own. Finally, there are no facts that Defendant Beckman, sued as an individual, knew of any of the purported protected activity by plaintiff. Bell Atlantic Corp v. Twombly, supra at. The three allegations that identify Defendant Beckman specifically do not contain any facts alleging knowledge on the part of Beckman, any retaliatory acts by Beckman, or what chilling effect allegedly occurred as a result. Rather, the complaint contains conclusory statements that are insufficient under the current pleading standards. The entire first claim for relief is vague and does not contain facts required to meet the Twombly/Iqbal plausibility standard. Defendant respectfully requests his motion to dismiss be granted.. Plaintiff s Fourteenth Amendment Claim Lacks Facts Sufficient To Set Forth a Plausible Claim For Relief Plaintiff also alleges violation of his Fourteenth Amendment Rights in his first claim for relief. In order to maintain a Section claim based upon the Fourteenth Amendment, plaintiff must allege Defendant acted in a discriminatory manner and that the discrimination was intentional. Reese v. Jefferson School Dist. No. J, 0 F.d, 0 ( th Cir Plaintiff s complaint does not contain any allegations of discrimination by Defendant Beckman, only a vague allegation of a violation of right to free speech, association and assembly. This is insufficient. To state a claim under U.S.C. for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendant acted with CASE NO. CV -0 DSF (JEMx

18 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( an intent or purpose to discriminate against the plaintiff based on a membership in a protected class. Lee v. City of Los Angeles, 0 F.d, ( th Cir. 00. A successful equal protection claim may be brought by a class of one where the plaintiff alleges he was been intentionally treated differently from others similarly situated. Village of Willowbrook v Olech, U.S., (000. As for plaintiff s Fourteenth Amendment claims, plaintiff fails to allege that Mr. Beckman acted against him with an intent or purpose to discriminate against him based upon his membership in a protected class or treated him differently from others who were similarly situated. As discussed above, there are no specific factual allegations against Mr. Beckman to support this claim for relief. Should the Court grant dismissal with prejudice of plaintiff s Section claim for relief, then the Court may also decline to exercise supplemental jurisdiction and dismiss plaintiff s supplemental state law claims. U.S.C.. Should the Court entertain the supplemental claims, they suffer from similar deficiencies, as discussed below. C. Plaintiff Fails To State A Plausible Claim For Relief Under the Ralph Act California Civil Code. provides in pertinent part, (a All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b or (e of Section, or position in a labor dispute or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive. Plaintiff fails to meet the pleading requirements of the Ralph Act there are no factual allegations only conclusory statements in the complaint. Legal conclusions are not assumed to be true and are insufficient to create plausibility of a complaint. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a formulaic recitation of the elements of a constitutional discrimination claim CASE NO. CV -0 DSF (JEMx

19 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( [citation omitted] As such, the allegations are conclusory and not entitled to be assumed true. Twombly, supra, 0 U.S., at -, S.Ct.. Plaintiff may point to paragraph to oppose this motion, however there is nothing in paragraph that satisfies the Twombly/Iqbal standard, which requires a complaint to contain sufficient factual allegations to show a plausible claim for relief. In paragraph, plaintiff alleges he is a member of the Union and participated in disclosures to Defendant Nestor and other officials of the City. He then alleges defendants threatened violent acts against him. Plaintiff then alleges Defendant Beckman made a statement that he would fuck over everyone on the executive board and that he is going to shove the association so far up the executive board s ass they won t know what to do. (Complaint. While these allegations certainly appear inflammatory on their face, breaking them down they yield little in the way of sufficient facts to support a plausible claim for relief. Plaintiff alleges his membership in his Union and participation in disclosures to Defendant Nestor and the City not to Defendant Beckman. Plaintiff further alleges two statements by Defendant Beckman, but is careful to leave out when these statements occurred, to whom they were made and whether they at all referenced plaintiff specifically. There is no way of knowing, based on what is in the complaint, whether these alleged statements occurred while plaintiff was a member of the executive board of his union, or years prior thereto. Further, there is no way of knowing whether these comments were directed to plaintiff directly, whether he heard them himself, or if they were stated with respect to another member of the Union therefore they have no weight in terms of whether plaintiff actually felt threatened by them. These statements are alleged out of context, and without such context they do not carry any threat of violence towards plaintiff. For example, if these alleged statements were made years prior to plaintiff s appointment to the executive board and to a third party, then there is no threat of violence to plaintiff or his property. Further, plaintiff s allegation that Defendants made threats of violence towards him is conclusory and asserted merely to meet a pleading element CASE NO. CV -0 DSF (JEMx

20 Case :-cv-0-dsf -JEM Document #: Filed 0// Page 0 of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( there is no indication which defendant, if any, made a threat of violence towards him as no violent act or threat is identified. Such vague pleading is impermissible. Defendant Beckman respectfully requests the Court dismiss plaintiff s third claim for relief. D. Plaintiff Fails To State A Plausible Claim For Relief Under the Bane Act California Civil Code. provides a right of action for damages against any person who interferes [or] attempts to interfere by threats, intimidation, or coercion with the exercise or enjoyment of a legal right. Section. requires an attempted or completed act of interference with a legal right, accompanied by a form of coercion. Jones v. Kmart Corp. ( Cal. th,. The Bane Act does not prohibit speech alone unless the speech itself threatens violence and the person against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against that person or the person s property and that the individual threatening violence had the apparent ability to carry out the threat. Reynolds v. County of San Diego F.d, 0 ( th Cir.. The complaint does not contain facts sufficient to state a claim for relief under the Bane Act. Speech alone is not actionable under the Bane Act unless it is accompanied by three specific things, as set forth in the preceding paragraph. These elements are not supported by the allegations in plaintiff s complaint. Defendant Beckman s two alleged comments are not actionable by themselves, and there are no facts (rather than conclusory statements that plaintiff was the person against whom the alleged comments were made, that the comments threatened violence to plaintiff specifically, or that Defendant Beckman had the ability to carry out the threat. The alleged comment that Defendant Beckman was going to shove the association so far up the executive board s ass they won t know what to do. ( in particular is not a threat that could be physically carried out by any individual. It is figurative language only. Further, as discussed earlier in this motion, there are no facts as to when these alleged comments occurred, to whom they were made, or against what individuals they CASE NO. CV -0 DSF (JEMx

21 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( were made. Assuming the comments were made, if they occurred on a date prior to plaintiff s appointment/election to the Union, then there were no threats of violence made against plaintiff and he had nothing to reasonably fear. There are no facts alleged in the complaint of an attempted or completed act of interference plus an act of coercion. The same analysis regarding paragraph applies in this section to paragraph there are no facts to provide a nexus between the alleged statements and any specific threat, intimidation or coercion at the very least, plaintiff must identify when these statements allegedly occurred, to whom they were directed, or if he even was the recipient of these statements. As stated above, the allegations in paragraph are insufficient as alleged to meet the Twombly/Iqbal standard, which requires a complaint to contain sufficient factual allegations to show a plausible claim for relief. Plaintiff s conclusory pleading is insufficient and may be disregarded by the Court in analyzing the sufficiency of the complaint. Legal conclusions are not assumed to be true and are insufficient to create plausibility of a complaint. All that is found in plaintiff s fourth claim for relief are legal conclusions. E. Defendant Beckman Enjoys Qualified Immunity Qualified immunity is an immunity from suit rather than a mere defense to liability. Mitchell v. Forsyth, U.S.,, 0 S.Ct. 0 ( Qualified immunity is a defense to lawsuits against governmental officials arising out of the performance of their duties. Its purpose is to permit such officials to undertake their responsibilities without fear that they will be held liable in damages for actions that appear reasonable at the time, but are later held to violate statutory or constitutional rights. Barnes v. County of Placer F.Supp.d 0, 00 (E.D. Cal. 00; Harlow v. Fitzgerald, U.S. 00,, 0 S.Ct. (. Qualified immunity hinges on the objective legal reasonableness of the official s actions. Harlow, supra, U.S. at. Further, qualified immunity should be determined at the earliest possible stage of the litigation, such as summary judgment, and certainly before trial, or the benefit of the immunity is lost. Id; Hunter v. Bryant, 0 U.S., - (. In Hunter, the CASE NO. CV -0 DSF (JEMx

22 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID 0 Beverly Boulevard Los Angeles, California Tel. No.: ( Court stated, the court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed years after the fact. Hunter, 0 U.S. at. Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact. Pearson v. Callahan, S.Ct. 0, (00 (citing to Groh v. Ramirez 0 U.S.,, S.Ct. (00. In First Amendment cases, there is a distinction between protection to speak in situations where the government is an employer vs. a sovereign. The Supreme Court has made it amply clear, however, that public-employment-speech cases simply are not typical First Amendment fare. Rather, [t]he government s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as a sovereign to a significant one when it acts as employer. Moran v. State of Washington, F.d, - (internal citation omitted. Plaintiff has failed here to set forth facts sufficient to create a plausible claim for relief for his Section. Even if he could set forth such a claim, Defendant Beckman enjoys qualified immunity, thus plaintiff s claims cannot lie against him. F. Punitive Damages There are no allegations in the complaint to support a claim for punitive damages pursuant to Civil Code simply stating defendants acted with conscious disregard of Plaintiff s rights and with the intent to vex, injure, and annoy is a legal conclusion that is not permitted under the Twombly/Iqbal standard. Plaintiff must allege specific facts to support such a claim. Further, since plaintiff fails to state sufficient facts to support any of his claims for relief, he also fails to state facts sufficient to support a claim for punitive CASE NO. CV -0 DSF (JEMx

23 Case :-cv-0-dsf -JEM Document #: Filed 0// Page of Page ID damages. As such, this moving defendant respectfully requests the Court dismiss plaintiff s claim for punitive damages with prejudice. IV. Conclusion For all of the reasons set forth above, Defendant Beckman respectfully requests the Court dismiss plaintiff s first, third and fourth claims for relief against him with prejudice. Dated: September, 0 0 Beverly Boulevard Los Angeles, California Tel. No.: ( By: /s/ ELIZABETH R. ENGELBERG ELIZABETH M. KESSEL ELIZABETH R. ENGELBERG REBECCA S. HUTTON Attorneys for Defendant, RICHARD BECKMAN 0 CASE NO. CV -0 DSF (JEMx