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Carlos Bejar v. City of Chula Vista

November 29, 2012

CARLOS BEJAR,
PLAINTIFF,
v.
CITY OF CHULA VISTA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT [DOC. 36]

On March 2, 2011, Defendants City of Chula Vista ("City") and Louis Vignapiano removed this civil-rights action to this Court from the San Diego Superior Court. This action arises from Plaintiff Carlos Bejar's termination from employment for the City. After failing to file an amended complaint by the ordered due date, Plaintiff now moves for leave to file a Second Amended Complaint ("SAC"). Defendants oppose.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 38.) For the following reasons, the Court DENIES Plaintiff's motion for leave to file a SAC.

BACKGROUND*fn1

The City employed Plaintiff beginning in 2002 until his termination in 2006. (PSAC ¶¶ 9--16.) Initially, Plaintiff worked for the City's Fire Department. (Id. ¶ 9.) But in 2005, he was transferred to Information Technology where he reported to Vignapiano. (Id. ¶ 12.)

Leading up to his termination, Plaintiff alleges that Vignapiano accused him of "lying about his timesheets and other documentation regarding Plaintiff's whereabouts on November 8, 2005." (PSAC ¶ 13.) Vignapiano also allegedly accused Plaintiff of "misuing sick leave on July 13, 2006, and August 28, 2006," "acted abusively toward Plaintiff," and "threatened to do something to [Plaintiff] 'worse' than firing him." (Id. ¶ 15.) Eventually, Vignapiano formally charged Plaintiff with "dishonesty" for mislabeling several hours he reported on a time sheet, and then terminated him. (PSAC 2:4--7.) Plaintiff, in response, retained counsel and "fought the charges at his pre-termination Skelly hearing, and at a lengthy evidentiary hearing before [the] Civil Service Commission," but to no avail. (Id. at 6:22--24.) After the Skelly hearing, the presiding officer at the hearing communicated with Vignapiano regarding the charges asserted against Plaintiff outside his presence. (PSAC ¶¶ 19--20.) Plaintiff alleges that this is Defendants' "most glaring due-process violation." (PSAC 8:3--5.) At the conclusion of the process, the City terminated Plaintiff on December 11, 2006. (Defs.' RJN Ex. 1 ¶ 64 [Doc. 37-1].)

Following the Skelly hearing and termination, the Civil Service Commission ("Commission") conducted another hearing regarding Plaintiff's termination in March 2007. (PSAC ¶¶ 21--25; Defs.' RJN Ex. 1 ¶ 64.) During this hearing, the Commission-a group of five unelected members who cannot hold any salaried City office or employment (Defs.' RJN Ex. 2 § 609)-did not allow Plaintiff to present an audio recording of a "threatening, obscenity-laced message" that Vignapiano left on Plaintiff's voicemail. (PSAC ¶ 23.) Ultimately, the Commission affirmed Plaintiff's termination. (Id. ¶ 21.)

Thereafter, Plaintiff sought judicial review of the Commission's decision by filing a petition for administrative mandamus pursuant to California Code of Civil Procedure § 1094.5 ("Mandamus Proceedings") in San Diego Superior Court. (PSAC ¶ 26; Defs.' RJN Ex. 1.) Plaintiff filed the petition in September 2007, and named only the Commission as a respondent. (Defs.' RJN Ex. 1 at 21.) In November 2009, the Superior Court granted Plaintiff's petition and reversed the Commission's decision. (PSAC ¶ 30.)

On January 31, 2011, Plaintiff filed this lawsuit in San Diego Superior Court. (Notice of Removal, Ex. A at 12 [Doc. 1-1].) In the First Amended Complaint ("FAC"), Plaintiff asserts six causes of actions: (1) abuse of process; (2) malicious prosecution; (3) unlawful policies, customs, or habits; (4) defamation; (5) interference; and (6) intentional infliction of emotional distress. Each of Plaintiff's causes of action stem from alleged civil-rights violations based on 42 U.S.C. § 1983. Furthermore, Plaintiff expressly seeks "different remedies for different injuries" than those pursued in the Mandamus Proceedings. (PSAC ¶¶ 52--54.)

On March 2, 2011, Defendants removed this case to this Court. (Doc. 1.)

On April 26, 2011, Defendants filed a motion for judgment on the pleadings. (Doc. 5.) The Court granted the motion, finding that all of Plaintiff's causes of action were barred by the statute of limitations and that Plaintiff was not entitled to equitable tolling. (Doc. 16.) Because Plaintiff had not been afforded an opportunity to amend his complaint in federal court, the Court granted Plaintiff leave to amend his complaint. The amended complaint was due by October 3,

On October 4, 2011, Plaintiff filed his amended complaint. (Doc. 18.) That complaint was stricken because it was untimely. (Doc. 21.) After the fact, Plaintiff filed an ex parte application for an extension of time to file the SAC, but that application was denied. (Docs. 22, 24.) Thereafter, Plaintiff filed a motion for reconsideration addressing the Court's denial of the ex parte application. (Doc. 25.) That motion was also denied. (Doc. 35.) However, the Court permitted Plaintiff to file a motion for leave to file an amended complaint.

Plaintiff now moves for leave to file a Second Amended Complaint ...


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