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Mory v. City of Chula Vista

February 11, 2008


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court are Defendants' Motion to Dismiss the First, Third, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action in Plaintiff's First Amended Complaint [Doc. No. 30], Plaintiff's Opposition [Doc. No. 43], Defendants' Reply [Doc. No. 52]; Defendants' Special Motion to Strike Plaintiff's First, Third, and Sixth Causes of Action From the First Amended Complaint ("Defs.' Anti-SLAPP Motion") [Doc. No. 33], Plaintiff's Opposition [Doc. No. 44], Defendants' Reply [Doc. No. 53]; Magistrate Judge Major's Report and Recommendation ("R&R") Granting and Denying in part Defendants' Motion to Enforce Their Settlement Agreement with Plaintiff [Doc. No. 77]; and Plaintiff's Application for a Continuance under Rule 56(f) [Doc. No. 85] and Defendants' Response [Doc. No. 93.]

For the following reasons, this Court: (1) DISMISSES Plaintiff's first, fourth, fifth, seventh, and eighth causes of action without prejudice; (2) STRIKES and DISMISSES Plaintiff's third and sixth causes of action with prejudice; (3) ADOPTS Magistrate Judge Major's R&R; and (4) DENIES Plaintiff's application for a continuance under Rule 56(f).


On July 19, 2006, Plaintiff Deanna Mory ("Mory") and the Chula Vista Police Officers Association ("CVPOA") filed a lawsuit ("Mory I") against the Chula Vista Police Department ("CVPD"), City of Chula Vista, Captain Donald Hunter, and Chief Richard Emerson. [See Mory I Complaint.] The lawsuit arose because the CVPD temporarily denied Mory permission to participate in beauty pageants while she was in training as a probationary employee. [Id.] Mory helped make this first lawsuit a matter of public interest by granting interviews to local and national news agencies and holding press conferences. [Defs.' Anti-SLAPP Motion at 5-6.]

Nine of the named Defendants in this action ("Mory II") are members of the CVPOA. [Defs.' Anti-SLAPP Motion at 4-5.] These Defendants ("Union Defendants") believe that Mory's first lawsuit (Mory I) has no merit or any legitimate objective. [Id.] During a CVPOA meeting in January 2007, these Defendants expressed their opposition to the CVPOA Board of Director's decision to continuously use their membership dues to help Mory pursue that lawsuit (Mory I). [Id. at 7.] The Union Defendants have stated that they expressed their opposition on their own volition and in the exercise of their constitutional rights to freedom of speech and expression. [Id.] However, Plaintiff argues that Chula Vista Police Chief Emerson and Captain Donald Hunter used their higher rank to pressure the Union Defendants to oppose the prosecution of the Mory I lawsuit at the meeting. [Plaintiff's First Amended Complaint ("FAC") ¶¶ 45-49.]

Plaintiff alleges that at the January 2007 union meeting the Union Defendants: (1) insisted that the CVPOA Board of Directors drop the Mory I lawsuit; (2) called for a membership vote on whether to proceed supporting the lawsuit; (3) asked about a $100,000 retainer for legal services in connection with the lawsuit; (4) indicated the Mory I lawsuit would bankrupt the CVPOA; (4) referred to Mory as a "$1.98 "employee because she had "nothing vested in [the CVPOA] and it made no sense to spend this kind of money to defend her rights." [Id. at 7-8.]

In response to Defendants' foregoing acts and statements at the union meeting, Plaintiff Mory and the CVPOA filed the instant lawsuit on March 13, 2007. [Id. at 8.] On April 30, 2007, Defendants responded to the original complaint by filing a motion to dismiss under 12(b)(6), as well as a special motion to strike portions of the complaint and to request attorneys' fees under California's Anti-SLAPP statute. [Id.] Soon after, the CVPOA dropped out of the lawsuit, leaving Mory as the only plaintiff. On June 14, 2007, Plaintiff Mory filed an amended complaint. [Id.; FAC.]

In the FAC, Plaintiff Mory alleges that after the meeting, the Union Defendants displayed tee-shirts at the workplace marked with the phrase "I Support the Outta Line Nine." [Id. at 9-10.] The phrase referred to the nine Union Defendants that raised objections at the meeting and who are also named defendants in the instant lawsuit (Mory II). [Id.] Plaintiff argues that the creation and display of these tee-shirts were part of the Defendants' conspiracy to intimidate the CVPOA Board to drop the Mory I lawsuit. [See FAC ¶¶ 37-41].*fn1

As a result of the Defendants' alleged actions, Plaintiff has sought injunctive relief and damages: (1) for "unlawful interference with protected rights;" (2) for violations of the Fair Labor Standards Act; (3) California Labor Code § 1102.5; (4) 42 U.S.C. § 1985(2) (unlawful intimidation of parties); (5) 42 U.S.C. § 1983 (conspiracy to violate civil rights); (6) California Government Code § 12940(h) (retaliation); (7) 42 U.S.C. § 2000e-3 (retaliation); and (8) 42 U.S.C. § 1986 (neglect to prevent conspiracy). [See FAC.] Defendants now move to dismiss seven of Plaintiff's eight amended claims on various grounds and also move to strike three of the claims under California's Anti-SLAPP statute.


Federal Rule of Civil Procedure 12(b)(6) provides the vehicle by which a defendant may attack a complaint that fails to allege facts sufficient to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In a Rule 12(b)(6) motion to dismiss, a plaintiff's allegations of material fact are accepted as true and are construed in the light most favorable to plaintiff. Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994). However, the court need not accept as true allegations that contradict facts which may be judicially noticed by the court. Mullis v. United States Bank. Ct., 828 F.2d 1385 (9th Cir. 1987).

"Dismissal [for failure to state a claim] can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Although the allegations of a complaint must be taken as true for purposes of a decision on the pleadings, dismissal is proper if the complaint is vague, conclusory, and fails to set forth any material facts in support of the allegations. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 583 (9th Cir. 1983). Finally, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . ." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations and quotations omitted).


I. Defendants' Motion to Dismiss Seven of Plaintiff's Eight Claims Is Granted

A. Defendants' Alleged Conduct Constitutes Protected Free Speech

In assessing the seven claims, this Court recognizes that the Union Defendants were exercising their right to free speech when they objected to the CVPOA Board's use of their union dues towards the prosecution of Mory I. Defendants highlight that Congress has specifically intended to protect speech at union meetings. The federal Labor Management Reporting and Disclosure Act ("LMRDA") states:

Freedom of speech and assembly. Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings[.]

29 U.S.C. § 411(a)(2) (emphasis added); see also Salzhandler v. Caputo, 316 F.2d 445, 450-51 (2d Cir. 1963) (stating that the enactment of the LMRDA was motivated by an interest in permitting union members to question the manner in which the union's officials handle the union's funds); Scovile v. Watson, 338 F.2d 678, 680 (7th Cir. 1964) (stating freedom of speech is a union member's right protected by the LMRDA); Berning v. Local 2209 UAW, 2007 U.S. Dist. LEXIS 80168, *35 (D. Ind. 2007) (stating same). Plaintiff correctly argues that this statute only applies to private employee union members and not public employees. However, this Court finds that the Union Defendants' statements in this case still warrant protection under the First Amendment.

The First Amendment protects the rights of public employees to form unions. Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463 (1979); Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 1985); see also Cal. Govt. Code § 3500 et. seq. (protecting public employees' rights to participate in unions). In Abood v. Detroit Bd. Of Education, 431 U.S. 209, 233-235 (1977), the Supreme Court held that a public teacher had a First Amendment Right to not be required, as a condition of employment, to contribute union dues towards the advancement of ideological causes with which the teacher disagreed and which were not "germane" to the union's duties as a collective-bargaining representative. The Court explained that "the freedom of an individual to associate for the purposes of advancing beliefs and ideas is protected" by the First Amendment and that "a government may not require an individual to relinquish rights guaranteed to him by the First Amendment as a condition of public employment." Id.

Similarly, here, the Union Defendants did not "relinquish" their free speech rights by becoming public employees. They did not relinquish their rights to speak and debate about: (1) the merits of the Mory I lawsuit--an issue of public concern--and (2) the use of their union dues towards that lawsuit.*fn2

Moreover, this Court also recognizes that "opposition" does not lose its protected status simply because it angers and upsets the listeners. After all that is the very point of opposition, as Justice Douglas wrote in Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949):

Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, [citation] is nevertheless protected against censorship or punishment, unless ...

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