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Thornbrough v. Western Placer Unified School Dist.

May 27, 2010

MICHAEL THORNBROUGH, PLAINTIFF,
v.
WESTERN PLACER UNIFIED SCHOOL DISTRICT, SCOTT LEAMAN, DAVID GIRARD, KATHY ALLEN, AND ROBERT NOYES, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER ON DEFENDANTS' PENDING MOTIONS*fn1

Four pending motions were filed by various defendants, each challenging Plaintiff's first amended complaint. Defendants Scott Leaman, Kathy Allen, Robert Noyes and the Western Placer Unified School District ("WPSUD") (collectively, the "School District Defendants"), filed a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's first amended complaint. (Docket No. 39.) Defendant David Girard also filed a dismissal motion under Federal Rule of Civil Procedure 12(b)(6) and a motion to strike certain portions of Plaintiff's first amended complaint under Federal Rule of Civil Procedure 12(f) and a "special motion to strike" Plaintiff's state law claims under California's "anti-SLAPP" statute, California Civil Procedure Code section 425.16. (Docket Nos. 40, 42, 48.) For the reasons stated below, the School District Defendants' dismissal motion is granted and denied in part; Defendant Girard's Rule 12(b)(6) dismissal motion and his anti-SLAPP motion to strike are granted and his motion to strike under Rule 12(f) is denied as moot.

I. LEGAL STANDARDS

A. Standard for Dismissal Under Federal Rule of Civil Procedure 12(b)(6)

A Rule 12(b)(6) motion "challenges a complaint's compliance with . . . pleading requirements." Champlaie v. BAC Home Loans Servicing, LP, No. S-09-1316 LKK/DAD, 2009 WL 3429622, at *1 (E.D. Cal. Oct. 22, 2009). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the [plaintiff's] claim is and the grounds upon which relief rests . . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Further, "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

To avoid dismissal, the plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Plausibility, however, requires more than "a sheer possibility that a defendant has acted unlawfully." Id. "When a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quotations and citation omitted).

In evaluating a dismissal motion under Rule 12(b)(6), the court "accept[s] as true all facts alleged in the complaint, and draw[s] all reasonable inferences in favor of the plaintiff." Al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, neither conclusory statements nor legal conclusions are entitled to a presumption of truth. See Iqbal, 129 S.Ct. at 1949-50.

The School District Defendants' dismissal motion is accompanied by a request that the court take judicial notice of two documents: 1) the Hearing Officer's Modified Findings and Recommendation submitted to the WPUSD Board of Trustees on April 28, 2009 in the In re Michael Thornbrough administrative proceeding; and 2) the Minutes from the special meeting of the WPUSD Board of Trustees held on April 28, 2009. (Request for Judicial Notice ("RJN") Exs. A, B.) Defendants argue the Hearing Officer's Modified Findings and Recommendation and the WPUSD Board of Trustee's Minutes "fall[] within the definition of 'adjudicative facts' and may be judicially noticed." (School District Defs.' Mot. to Dismiss 6:15-21.) Plaintiff counters arguing the Hearing Officer's Findings and Recommendation and the WPUSD's actions "are not final because they are subject to a pending writ petition filed in the Placer County Superior Court." (Pl.'s Objections to School District Defs.' RJN 1:23-24.) Plaintiff further argues that while the court may take judicial notice of the fact that findings were made, it may not treat the Hearing Officer's conclusions as binding or conclusive in this action. (Id. 2:10-13.)

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). "The existence and authenticity of a document which is a matter of public record is judicially noticeable such as the authenticity and existence of a particular order, pleading, public proceeding, which are matters of public record, but the veracity and validity of their contents (the underlying arguments made by the parties, disputed facts, and conclusions of fact) are not." Cactus Corner, LLC v. United States Dep't of Agric., 346 F. Supp. 2d 1075, 1099 (E.D. Cal. 2004) (citations omitted) (taking judicial notice of the existence and authenticity of data report created and published by the Department of Agriculture but not the accuracy or validity of the contents of the report which were disputed).

Since the Hearing Officer's Findings and Recommendation and the WPUSD Minutes are matters of public record, they may be judicially noticed. However, judicial notice is limited to the existence of these documents and recognition that the opinions contained therein have been stated. See id. at 1000. Therefore, neither the Hearing Officer's Findings and Recommendation nor the WPUSD Minutes are "dispositive of any issue in th[is] case." Transmission Agency of N. Cal. v. Sierra Pacific Power Co., 295 F.3d 918, 924 n.3 (9th Cir. 2002) (finding opinion of administrative judge could be judicially noticed even where opinion was subject to further administrative and judicial review).

B. Motion to Strike Under Cal. Civ. Proc. Code § 425.16

California Civil Procedure Code section 425.16 ("section 425.16"), known as the "anti-SLAPP statute," "provide[s] a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." Rusheen v. Cohen, 37 Cal. 4th 1048, 1055-56 (2006). Specifically, section 425.16(b)(1) provides:

A cause of action against a person arising from any act of that person's right of petition or free speech under the United States Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

The Ninth Circuit explained the process for evaluating an anti-SLAPP motion in Hilton v. Hallmark Cards:

California courts evaluate a defendant's anti-SLAPP motion in two steps. First, the defendant moving to strike must make a threshold showing that the act or acts of which the plaintiff complains were taken in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue as defined in . . . the statute. Second, if the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. 599 F.3d 894, 903 (9th Cir. 2010) (quotations and citations omitted).

However, "[s]pecial procedural rules apply where an anti-SLAPP motion is brought in federal court." Lauter v. Anoufrieva, 642 F. Supp. 2d 1060, 1109 (C.D. Cal. 2009) (citing Bulletin Displays, LLC v. Regency Outdoor Advertising, Inc., 448 F. Supp. 2d 1172, 1180 (C.D. Cal. 2006)); see also Verizon Delaware, Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004) (stating that "procedural state laws are not used in federal court if to do so would result in a direct collision with a Federal Rule of Civil Procedure . . . .").

If a defendant makes an anti-SLAPP motion based on the plaintiff's failure to submit evidence to substantiate its claims, the motion is treated as a motion for summary judgment, and discovery must be developed sufficiently to permit summary judgment under Rule 56. This is because to permit a defendant to invoke the Anti-SLAPP statute to require a plaintiff to present evidence to support his claims before an opportunity for discovery would directly conflict with Federal Rule of Civil Procedure 56. If an anti-SLAPP motion is based on legal deficiencies in the complaint, a federal court must determine the motion in a manner that complies with the standards set by Federal Rules 8 and 12.

Lauter, 642 F. Supp. 2d at 1109 (quotation and citations omitted) (denying anti-SLAPP motion without prejudice because discovery had not closed).

In this case, Girard's anti-SLAPP motion challenges both the legal sufficiency of Plaintiff's allegations as well as Plaintiff's failure to substantiate his claims with evidentiary support. However, since this action is still in its infancy, requiring Plaintiff to present evidence to support his claims without the opportunity for discovery would directly conflict with Federal Rule of Civil Procedure 56. See Rogers v. Home Shopping Network, Inc., 57 F. Supp. 2d 973, 980 (C.D. Cal. 1999) (stating that "[i]f a defendant desires to make a special motion to strike [under section 425.16] based on the plaintiff's lack of evidence, the defendant may not do so until discovery has been developed sufficiently to permit summary judgment under Rule 56.") Therefore, only Defendant Girard's arguments challenging the legal sufficiency of Plaintiff's complaint under Federal Rules 8 and 12 will be considered.

Defendant Girard filed a Supplemental Request for Judicial Notice with his reply brief supporting his anti-SLAPP motion to strike, in which he requests the court take judicial notice of the April 28, 2009 Decision of the WPUSD Governing Board, Resolution No. 08/09.19, adopting the Hearing Officer's Findings and Recommendation to the Board of Trustees to terminate the employment of Plaintiff. Since this document is a matter of public record, the existence of the Resolution may be judicially noticed.

II. BACKGROUND

A. Plaintiff's Allegations

The WPUSD hired Plaintiff on July 8, 1997 as a maintenance worker. (First Amended Compl. ("FAC") ¶ 1.) Plaintiff was eventually promoted to the position of Assistant Director of Maintenance, which is the position he held during the time period at issue. (Id. ¶ 1.) The WPUSD, however, terminated Plaintiff effective April 29, 2009, after an administrative hearing. (Id. ¶ 25.) Plaintiff's claims stem from his allegations that defendants improperly initiated administrative proceedings against him based on false charges, and wrongfully terminated him in retaliation for his reporting of improper spending and mismanagement within the WPUSD. (Id. ¶ 1.)

Plaintiff alleges that at some time prior to 2006, he discovered as he worked that a construction contractor hired by the WPUSD "was omitting higher quality materials and substituting materials of lesser quality and lower cost without passing on the cost savings to WPUSD." (Id. ¶ 14.) Plaintiff alleges that he "communicated with [incoming WPUSD Superintendent] Leaman about the construction cost problems, as well as [the outgoing Superintendent's] . . . failure to adequately address" the issue. (Id. ¶ 15.) Defendant Leaman allegedly requested that Plaintiff "give him a year to address [Plaintiff's] concerns." (Id.)

Plaintiff alleges Defendant Leaman suspended him in April 2007 "in retaliation" for Plaintiff's "prior complaints of misspending, mismanagement . . . and inefficiency;" and, that Leaman "had Superintendent Robert Noyes initiate administrative termination proceedings against [Plaintiff] based on false accusations and without good cause." (Id. ¶ 16.) More specifically, Plaintiff alleges Defendants Leaman, Noyes and Girard "conspired and agreed to falsely claim that [Plaintiff had] violated California's Fair Employment and Housing Act . . . and WPUSD's sexual harassment policies." (Id. ¶ 17.) Plaintiff alleges "[t]he claim of sexual harassment was based solely on a report of a singular incident [in which Plaintiff] purportedly commented privately to two male co-workers [about] a female co-worker's breasts." (Id.) Defendant Girard allegedly "drafted" "[t]he charges of sexual harassment" against Plaintiff. (Id.) These allegedly "false charges" "were eventually resolved by settlement." (Id.)

After the settlement of the "false charges," Plaintiff alleges he took further actions to alert the WPUSD to problems within the school district. (Id. ¶¶ 18-24.) For example, on August 15, 2007, Plaintiff sent a binder entitled "Questions Regarding District Construction Projects" to members of the WPUSD Board of Trustees. (Id. ¶ 18.) A copy of the August 2007 binder was also delivered to the Placer County grand jury as well as the editor of a local newspaper. (Id.) Plaintiff also allegedly wrote a letter to Assistant Superintendent Kathy Allen in December 2007, in which he complained about "a change in purchase order procedures" within the school district. (Id. ¶ 20.) Further, Plaintiff alleges he also "sent a letter to Leaman, asking for an update on the issues reported to the WPUSD Board" in the August 2007 binder. (Id. ¶ 21.)

After Plaintiff received no response from the WPUSD Board or Defendants Leaman or Allen, Plaintiff allegedly sent another letter to the WPUSD Board of Trustees on April 23, 2008, in which he "advised the Board of allegations that WPUSD had been presented with a forged contract from the Wausau Paper Company"; that an employee "had been participating in kick boxing while he was on restricted duty for an alleged on the job injury[;]" and that another employee had made incorrect entries in her husband's time records. (Id. ¶ 22.) Plaintiff also alleges that on May 22, 2008, he sent a letter to the Placer County grand jury and to the WPUSD Board of Trustees, "notifying them that the Board and administration had failed to respond to the reports of fraud, misconduct, and inefficiency [and that] . . . the WPUSD administration was wasting WPUSD funds and ignoring complaints of criminal activity." (Id. ¶ 23.)

Plaintiff further alleges that in response to these reports, Defendant Allen "issued a reprimand of [Plaintiff], and Leaman executed a Statement of Charges and Recommendation for Dismissal of [Plaintiff] that was drafted by Girard," which initiated administrative termination proceedings. (Id. ¶ 24.) An administrative hearing was held before a hearing officer selected by WPUSD. (Id. ¶ 25.) The hearing officer issued his Findings and Recommendation on April 26, 2009, recommending that the Governing Board of the WPUSD terminate Plaintiff from employment. (RJN Ex. A.)

The hearing officer's Findings and Recommendation were adopted by the WPUSD Board on April 28, 2009 and ...


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