KIMBERLY J. MUELLER, District Judge.
Defendants' motions to dismiss (ECF 32) and to strike (ECF 33) are before the court. Defendants in this action are the California Commission on Teacher Credentialing ("CTC"), Dale Janssen, Mary Armstrong, Lee Pope, Christa Hill, and Ani Kindall (collectively, "defendants"). Plaintiff alleges she was terminated from her position as a staff attorney with the CTC in violation of the First Amendment and California whistleblower statutes. For the reasons below, the court GRANTS in part defendants' motion to dismiss, REMANDS this case, and DENIES defendants' motion to strike as moot.
I. ALLEGED FACTS AND PROCEDURAL BACKGROUND
Plaintiff is a licensed California attorney who worked as a staff counsel for defendant CTC. (FAC¶11, Ex. A, ECF 29.) The CTC"is a regulatory agency that serves as a state standards board for educator preparation for the public schools of California, the licensing and credentialing of professional educators, the enforcement of professional practices of educators, and the discipline of credential holders and applicants for credentials in the State of California." ( Id. ¶ 12.) A Committee on Credentials ("Committee"), comprised of seven citizens and appointed by the nineteen-member CTC Commission ("Commission"), reviews disciplinary allegations against credential holders and applicants and recommends to the full Commission "a particular adverse action" when warranted. ( Id. )
Plaintiff alleges she disclosed improper activities by the CTC and its employees, both internally to CTC supervisors and externally to the Bureau of State Auditing ("BSA") and Senate Pro Tem Steinberg's office. ( Id. ¶¶16-29.) In particular, plaintiff alleges she disclosed problems with the CTC's processing of disciplinary cases. ( Id. ¶¶17-22.) In retaliation for these disclosures, defendants unlawfully terminated plaintiff's employment. ( Id. ¶ 27.) Plaintiff sought administrative relief in the wake of her termination. On or about November 29, 2010, plaintiff timely appealed her termination to the State Personnel Board ("SPB"). ( Id. ¶30.) On about March 28, 2011, plaintiff filed a Whistleblower Retaliation Complaint with the SPB under California Government Code§§8547 et seq. and 19683 and California Code of Regulations, Title 2, § 67.1 et seq. ( Id. ) These two cases were consolidated and heard before an Administrative Law Judge ("ALJ"). ( Id. ) The ALJ issued a proposed decision denying plaintiff's appeal on April 16, 2012, and the SPB adopted the proposed decision on May 7, 2012. ( Id. )
After receiving the SPB's adverse decision, plaintiff filed her original complaint on November 14, 2012 in Sacramento County Superior Court pleading three causes of action: (1) violation of the California Whistleblower Protection Act ("CWPA"), California Government Code§ 8547 et seq., against defendant CTC; (2) violation of California Labor Code§ 1102.5 against defendant CTC; and (3) violation of her First Amendment Rights under 42 U.S.C.§ 1983 against the individual defendants. Defendants removed the action to this court on February 8, 2013 (ECF 13) and moved to dismiss for the first time on February 15, 2013 (ECF 6). The court granted in part and denied in part this motion. (ECF 27). Plaintiff filed her first amended complaint on September 6, 2013, alleging these same three causes of action based upon substantially similar facts. (ECF 29.) Defendants filed the instant motions to dismiss and strike on September 19, 2013. (ECFs 32, 33.) Plaintiff opposed on October 11, 2013 (ECFs 34, 35) and defendants replied on October 18, 2013 (ECFs 37, 38.)
While defendants brought the instant motion to dismiss under Rules 12(b)(1) and 12(b)(6), the court reaches only their 12(b)(6) arguments and therefore does not recite the standard applicable to a Rule 12(b)(1) motion.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of 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 a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief, " FED. R. CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter... to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "labels and conclusions' or a formulaic recitation of the elements of a cause of action....'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court "must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule does not apply to "a legal conclusion couched as a factual allegation, '" Papasan v. Allain, 478 U.S. 265, 286 (1986) quoted in Twombly, 550 U.S. at 555, nor to "allegations that contradict matters properly subject to judicial notice, " or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).
In their motion to dismiss, defendants argue all three of plaintiff's current claims must be dismissed because she has already litigated them before an ALJ and received an adverse decision. (ECF 32-1 at 1.) Defendants assert that the ALJ's quasi-judicial determination that plaintiff's claims are meritless precludes plaintiff from pursuing those same claims in federal court, under the doctrines of collateral estoppel and res judicata. ( Id. ) Further, defendants contend plaintiff's section 1983 First Amendment claim must be dismissed for the additional reason that plaintiff's speech was made pursuant to her official duties and/or her speech was not a matter of public concern. ( Id. ) Finally, plaintiff's California Labor Code§ 1102.5 claim must be dismissed, defendants maintain, for the additional reason that plaintiff has not exhausted the required administrative remedies. ( Id. )
The court finds below that plaintiff's section 1983 claim is barred by res judicata. Because the court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims, the ...