United States District Court, N.D. California
AMENDED ORDER RE: DEFENDANTS' MOTIONS TO DISMISS (Dkt. Nos. 44, 46)
JACQUELINE SCOTT CORLEY, Magistrate Judge.
Plaintiff Jonathan Bellusa, a sergeant with the Oakland Unified School District (the "District") Police Department, filed this civil rights action alleging retaliation in violation of state and federal law by the Board of Education for the District, District General Counsel Jacqueline Minor, District Superintendent Anthony Smith, former District Chief of Police Peter Sarna, and interim District Chief of Police James Williams (collectively, "Defendants").
Defendants move to dismiss three of Plaintiff's five claims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Having carefully considered the parties' briefing, and having had the benefit of oral argument on March 20, 2014, the Court DENIES in part and GRANTS in part Defendants' motion without leave to amend.
The Court summarized the factual allegations underlying this action in detail in its December 9, 2013 Order (Dkt. No. 42) which it incorporates by reference. In short, Plaintiff alleges that the District and its employees engaged in various acts of retaliation against Plaintiff in response to (1) his complaints regarding racist and derogatory remarks by Sarna, and (2) his refusal to testify untruthfully about a District police shooting.
In its previous Order dismissing the FAC in part, the Court denied Defendants' motion to dismiss the Title VII retaliation claim against the District and the Section 1983 retaliation claim against Williams. The Court dismissed the Section 1983 retaliation claim as to Smith, Sarna, and Minor, the Labor Code Section 1102.5 retaliation claim against the District, and the Education Code, Bane Act, and intentional infliction of emotional distress claims against all Defendants. Plaintiff subsequently filed his Second Amended Complaint ("SAC"). Defendants now move to dismiss three of the remaining five claims.
A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a "probability requirement" but mandates "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). "[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks and citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.").
Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), under which a party is only required to make "a short and plain statement of the claim showing that the pleader is entitled to relief, " a "pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555.) "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively."). The court must be able to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663. "Determining whether a complaint states a plausible claim for relief... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 663-64.
Defendants move again to dismiss the claims for retaliation in violation of 42 U.S.C. Section 1983 (second claim for relief); retaliation in violation of Section 1102.5(c) for Plaintiff's resisting demands that he alter his testimony (fourth claim for relief); and violation of the Reporting by School Employees of Improper Government Activities Act, California Education Code Section 44114 (fifth claim for relief).
I. Section 1983 Retaliation by Chief Williams
Plaintiff's second cause of action alleges that Chief Williams retaliated against him in violation of 42 U.S.C. Section 1983 for exercising his First Amendment right to speak out about a matter of public concern: Sarna's racially discriminatory conduct. (SAC ¶ 86.) Plaintiff alleges that as a result of the protected statements, Williams, without any justification for doing so, subjected Plaintiff to a District internal affairs investigation. (SAC ¶ 45.) Defendants contend that an internal affairs investigation cannot constitute an adverse employment action.
In its Order resolving Defendants' original motion to dismiss, the Court denied Defendants' motion to dismiss the Section 1983 claim against Williams. (Dkt. No. 42 at 11.) Despite that ruling, Defendants move again to dismiss that claim without first seeking leave to file a motion for reconsideration. See Civil L.R. 7-9(a) ("No party may notice a motion for reconsideration without first obtaining leave of Court to file the motion.") For this reason the Court denies the renewed motion to dismiss the retaliation claim against Williams.
Defendants' failure to raise the "adverse employment action" issue in their first motion does not allow them to move for reconsideration of the Court's ruling. To be entitled to bring a motion for reconsideration in the first place a party must show that since the court's ruling a material difference in fact or law has emerged or that the court failed to consider facts or dispositive legal arguments presented to the court. Civil L.R. 7-9(b). Here, Defendants simply failed to make an argument that they could have made. Such argument ...