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Disney v. City of Tehachapi

United States District Court, E.D. California

July 11, 2014

PETER GRAFF and RICK DISNEY, Plaintiffs,
v.
CITY OF TEHACHAPI, et al, Defendants.

ORDER ON MOTION TO DISMISS (Docs. 17)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

Plaintiffs Peter Graff ("Graff") and Rick Disney ("Disney") (collectively "Plaintiffs") bring this suit for violations of Cal. Lab. Code § 1102.5 and 42 U.S.C. §1983 against Defendants the City of Tehachapi ("City"), Jeff Kermode ("Kermode"), Kevan Emprey ("Emprey"), Scott Kecham ("Kecham"), Mike Christian ("Christian"), and Does 1-11 (collectively "Defendants"). See Doc. 14, Second Amended Complaint ("SAC"). Before the Court is Defendants' motion to dismiss the SAC for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons discussed herein, the Court GRANTS in part and DENIES in part Defandants' motion.

II. BACKGROUND

A. Facts[1]

Graff has been satisfactorily employed as a patrol officer by the Tehachapi Police Department for over five years. Disney had been satisfactorily employed as a patrol officer by the Tehachapi Police Department for over two years when he retired in March 2013.

In 2009, Graff reported to Sergeant Kevin Paille ("Sergeant Paille") that Sergeant Empey was falsifying timesheets. Sergeant Paille asked Graff and Disney to monitor the problem. In August 2010 Sergeant Paille brought the results of Graff and Disney's monitoring to the attention of the Chief of Police and subsequently reported back to Plaintiffs that the Chief of Police did not approve of the investigation. In June 2011, almost a year after the report was made to the Chief of Police, Sergent Empey confronted Disney regarding this issue.

In July 2010, the Plaintiffs attended a barbeque where Officer Ketchum was also present. At the barbeque, Officer Ketchum verbally and physically harassed Graff's wife, which led to a verbal altercation between Officer Ketchum and Graff. Graff reported Officer Ketchum's behavior to Sergeant Paille. Since the incident at the barbeque, Officer Ketchum rejected Graff's police reports as unsatisfactory. Graff believed Ketchum was rejecting his reports in retaliation for Graff reporting Ketchum's actions at the barbeque. Graff reported his suspicion of retaliation to Sergeant Paille.

In June 2011, there was a dispute between Graff and Officer Christian regarding Graff's work hours. The argument escalated to the point where Graff felt physically threatened. Later that day, Sergeant Empey questioned Graff regarding the incident with Officer Christian. Graff criticized Sergeant Empey's handling of Officers Ketchum and Christian's behavior. After the incident, Officer Christian submitted a memorandum recommending that Plaintiff Graff's employment be terminated on the grounds of insubordination. Later that month, Officer Christian again physically confronted Graff.

In September 2011, Disney reported to Chief of Police Kermode that Officer Ketchum served alcohol to underage members of the Police Explorer program. Disney also complained about the mishandling of the incident between Officer Ketchum and Graff. In response, Chief of Police Kermode appointed Sergeant Empey, who had also been present at the event where the minors were served alcohol but failed to report it, to investigate the incident. In 2012, Officer Kermode told Disney the matter had been investigated and the charge was without merit.

Throughout 2011, Graff and Disney had several verbal altercations with other members of the police force. The subject of these altercations varied. Plaintiffs met with City Councilmember Smith to report the continued animosity between Plaintiffs and other members of the police force. In September 2011, Officer Disney sent an email to the Chief of Police as well as the City Manager complaining of a hostile work environment at the police department. In November 2011, Plaintiffs met with Councilmember Smith for a second time. Later that year, Officer Graff met with City Councilmember Vauchon and Mayor Grimse to discuss these complaints. Plaintiffs feel that they were retaliated against for speaking to the councilmen and mayor. In November 2011, Plaintiffs' partnership was terminated by the police force, which they believe is a result of these meetings.

In February 2012, Officer Christian listed Graff in a police report which claimed that Graff was responsible for a missing police radio. The police report was later "erased from the police report database." Doc. 14 at 8. It is unclear to the Court what is meant by erased but assumes that the report disappeared from the record. Graff was informed that only the Chief of Police could erase police reports. Doc. 14 at 8.

In April 2012, Disney responded to an emergency call, which required him to give medical care to an infant. Disney, through no fault of his own, was unable to save the infant. Disney was extremely upset and decided to take the rest of his shift off after arranging for Officer Arebalo to cover for him. On the day of the incident, Chief Kermode approved of Disney terminating his shift early. On May 7, 2012, however, Disney was notified that he was being investigated for leaving his shift after attending to the infant in April. He was also put on administrative leave, which led to the suspension of his badge, gun, and the use of his department vehicle.

In June 2012, Disney was informed that the police department had been overpaying him and would be withholding payments going forward. At some point in the first half of 2012, Disney was informed by Chief Kermode that he would not receive his five percent merit increase nor the extra pay due to him for serving as Field Training Officer.

In August 2012, Chief Kermode informed Disney that he was the subject of an internal affairs investigation for allegedly making false and/or disparaging statements about fellow officers.

In June 2012, Graff spoke with several Councilmembers regarding the conditions at police headquarters. Around that same time period, Chief Kermode gave a speech to a group of officers in which he instructed them not to speak to City Councilmembers or make any complaints about the department. Shortly thereafter, in July 2012, Graff's service vehicle was taken away, ostensibly because he was on injured-on-duty status. Other officers were routinely allowed to keep their service vehicles when they were on similar statuses. As a result, Graff was unable to transport his police dog for appropriate training and certification. In July 2012, Graff was also informed that he would not receive his five percent merit increase. Chief Kermode told Plaintiff Graff that his merit increase was being withheld until Graff made improvements; however, Chief Kermode never specified what those improvements were. In August 2012, the Chief of Police reassigned the directorship of the Reserve Officer Training Program from Plaintiff Graff to Officer Ketchum. The following month, Graff sent an email to the Chief of Police complaining about the removal of his patrol vehicle and being the subject of a frivolous investigation. In subsequent emails, Graff complained about other misconduct in the workplace and voiced his intent to continue speaking with City Council regarding his situation, as well as his intent to file a lawsuit. In December 2012, Graff was made the subject of an internal investigation.

B. Procedural History

On January 3, 2013 Disney and Graff filed a formal government tort claim with the City. The claim was rejected the following month.

On July 24, 2013, Plaintiffs filed a complaint in Kern County Superior Court alleging breach of contract and retaliation in violation of public policy against the City. On November 18, 2013, the Kern County Superior Court sustained the City's demurrer to Plaintiffs' complaint with leave to amend.

On December 23, 2014, Plaintiffs filed a first amended complaint against Defendants alleging (1) violation of Cal. Lab. Code § 1102.5; (2) violation of 42 U.S.C. § 1983; and (3) penalties under the Private Attorney General Act, Cal. Gov. Code § 2698, et seq. Defendants removed this action to this court on January 22, 2014 on the basis of federal question jurisdiction over Plaintiffs' §1983 claim. Doc. 1.

Defendants filed a motion to dismiss Plaintiff's first amended complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) on January 29, 2014. Doc. 6. Plaintiffs filed an opposition on February 20, 2014, and Defendants filed a reply on February 27, 2014. Docs. 10 and 11. On March 10, 2014, this Court dismissed Plaintiffs' claims in part and gave Plaintiffs leave to amend. Doc. 13. On March 31, 2014 Plaintiffs filed their second amended complaint. Doc. 14. Defendants filed a motion to dismiss on April 21, 2014. Doc. 17. Plaintiffs filed their opposition on May 13, 2014 and Defendants filed their reply on May 20, 2014. Docs. 20 and 22.

III. STANDARD OF DECISION

A. 12(b)(6) Failure to State a Claim

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A dismissal under Rule 12(b)(6) is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Iqbal, 566 U.S. at 677.

To survive a Fed.R.Civ.P. 12(b)(6) motion to dismiss, the plaintiff must 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 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, 566 U.S. at 678. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility for entitlement to relief." Id. (citing Twombly, 550 U.S. at 557).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). Thus, "bare assertions... amount[ing] to nothing more than a formulaic recitation of the elements... are not entitled to be assumed true." Iqbal, 566 U.S. at 698.

Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, "a complaint... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." ...


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