This matter is before the court on review of the findings
and recommendations ("F&R") of the magistrate judge,*fn1
filed February 8, 2011, addressing defendants City of Red
Bluff, Martin Nichols, Tessa Pritchard, Mark Barthel, and Richard
Crabtree's (collectively "defendants") motion to dismiss plaintiff
Scott Johnston's ("plaintiff") first amended complaint
("FAC"). The FAC alleges the following claims: 1) age discrimination
in violation of the Age Discrimination in Employment Act ("ADEA"); 2)
denial of procedural due process; 3) civil conspiracy, fraud, and
wrongful termination; and 4) negligence. Defendants filed objections
to the magistrate judge's findings and recommendations.*fn2
The court adopts the magistrate judge's findings and
recommendations with respect to the ADEA, procedural due process, and
civil conspiracy, fraud, and wrongful termination claims. However, for
the reasons set forth below, the court does not adopt in full the
findings and recommendations with respect to plaintiff's negligence
The court adopts the factual and procedural background set forth by the magistrate judge in his findings and recommendations. (See F&R, filed Feb. 8, 2011 [Docket # 49], at 2-3.)
When timely objections to findings by a magistrate judge are filed, the district court must conduct a de novo determination of the findings and recommendations as to issues of law. 28 U.S.C. § 636(b)(1). The district court may adopt, reject, or modify in part or in full the findings and recommendations. 28 U.S.C. § 636(b)(1)(C). For the reasons set forth below, the court adopts the magistrate's findings and recommendations in part and declines to adopt in part.
Plaintiff's fourth claim for relief alleges negligence.*fn3
(FAC, filed June 18, 2010 [Docket # 34], ¶¶ 87-93.) Specifically, plaintiff alleges that the "[h]iring, promotion and contracting practices of [d]efendant [City of] Red Bluff resulted in unqualified persons being given positions of authority" and that these persons "contributed to, or caused the
[p]laintiff's termination." (Id. ¶ 92.) Defendants' argue "that no liability exists on behalf of a governmental entity or its employees in the absence of a specific statute providing for such liability," relying on California Government Code §§ 815 and 815.2. (Defs.' Mot. to Dismiss ["MTD"], filed July 6, 2010 [Docket # 35], at 14.)
California Government Code § 815(a) provides that "[u]nless otherwise provided by statute: . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee . . . ." Cal. Gov. Code § 815(a). Thus, the City of Red Bluff may not be held directly liable for its hiring, promotion and contracting practices unless plaintiff can show that a statute imposes a duty upon the City of Red Bluff to the contrary or that the City of Red Bluff is vicariously liable for the acts of its employees.*fn4 Plaintiff does not point to any specific statute that serves as a basis for liability of the City of Red Bluff nor does he allege that the City of Red Bluff is liable for negligence through the actions of its employees. As such, defendants' motion to dismiss plaintiff's negligence claim as to the City of Red Bluff is GRANTED with leave to amend.
As to plaintiff's negligence claims against individual defendants Martin Nichols, Tessa Pritchard, Mark Barthel, and Richard Crabtree, defendants' reliance on California Government Code sections 815 and 815.2 is without merit. These statutes only provide immunity to a public entity, not to individual public employees.*fn5 Because defendants failed to point to any relevant statute granting immunity to the individual, defendants' motion to dismiss plaintiff's negligence claim as to the individual defendants is DENIED.
For the foregoing reasons, the court adopts the magistrate judge's findings and recommendations as to plaintiff's ADEA, due process, and civil conspiracy, fraud, and wrongful termination claims. The court declines to adopt the magistrate judge's findings and recommendations as to plaintiff's negligence claim. Defendants' motion to dismiss is GRANTED with leave to amend as to defendant City of Red Bluff and DENIED as to defendants Martin Nichols, Tessa Pritchard, Mark Barthel, and Richard Crabtree. Plaintiff is granted fifteen (15) days from the date of this order to file a second amended complaint in ...