Mack v. California Dept. of Corrections and Rehabilitation

          ORDER GRANTING IN PART THE MOTION TO DISMISS; ORDER DENYING AS MOOT THE SPECIAL MOTION TO STRIKE (DOCS. 48, 52)

          Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.

         I. Background

         Since September 1986, the plaintiff has been employed by the California Department of Rehabilitation and Corrections. (Doc. 40 at2) During his tenure, he has worked at several of the CDCR’s prison facilities and steadily improved his position in terms of salary and job duties. Id. at 3. In 1999, Mack transferred to CCI. Id. at 3. Mack claims he was subject to unlawful personnel actions at CCI due to his race.

         In June 2013, Mr. Mack alleges he documented an incident of staff misconduct involving his immediate supervisors, David Mason and Brad Sanders. (Doc. 40 at 4) In December 2013, Mack sought to transfer to the California Men’s Colony. Id. CCI’s Warden, Holland, approved the transfer. Id. However, the transfer did not occur because Mason and Sharon McKay-a subordinates of Holland’s-told the sergeant with whom he had to interview at CMC, that Mack was the subject of a pending personnel investigation. Id. Mack had not been notified of a pending personnel investigation and did not learn of it until April 2014. Id.

         Mack applied for a Lieutenant position at CCI in February 2014. (Doc. 40 at 4) He was denied the promotion and told that it was due to a mistake by Holland and he would be reconsidered for the position later in the month. Id. However, he was not. Id.

         In May 2014, Mack filed a complaint with the EEOC/DEFH and raised claims of discrimination and retaliation. (Doc. 40 at 4) The next month, Mack attended a mandatory EEO training. Id. at 4-5. At the training, Brad Sanders asked the trainer a question that involved a hypothetical situation in which a person making an EEOC complaint was, at that time, the subject of a personnel investigation. Id. Mack felt the question was meant to “target and ridicule” him. Id. at 5. Also, during the training, the attendees were asked to participate in a role-playing exercise involving a claim of retaliation. Id. Mack felt uncomfortable. Id. Mack complained about the incident, and other incidents, soon after. Id. The CDCR, through Associate Warden Garcia, responded and ordered Mack and others listed in his complaint to refrain from interaction other than that required by their job duties. Id. In early June and again in July 2014, Mack amended his EEOC/DFEH complaint but the conditions worsened. (Doc. 40 at 5)

         In July 2014, Mack had a promotional interview at Ironwood State Prison. (Doc. 40 at 5) Though Mack was selected initially for the promotion, it fell through after a coworker told staff at Ironwood that Mack was the subject of a personnel investigation. Id. at 6. This occurred also in connection with a promotional opportunity at Wasco State Prison in the same month. Id. Mack alleges he did not learn of this personnel investigation until December 2014. Id. Notably, at an administrative hearing related to Mack’s whistleblower complaint^[1] on August 12, 2014, Garcia testified that he was not aware of any personnel investigations related to Mack. Id. However, Garcia testified he had sought an internal affairs investigation of Mack. Id. On August 19, 2014, Mack was temporarily reassigned due to a personnel investigation. Id.

         In September 2014, Holland denied Mack’s request for an “out of class assignment.” (Doc. 40 at 7) Later in the month, Mack was interviewed for a promotion at CCI. Mack contends that the panelists assigned to conduct the interview had conflicts of interest because they were aware of the pending personnel investigations and the “ultimate adverse action” resulting therefrom. Id. Mack was not selected and though a person of the same race as Mack was selected, this person was “stripped” of his promotion by Holland. Id. at 7-8. Once again, in September 2014, Mack again filed a complaint with the EEOC/DFEH. Id.

         In December 2014, the Office of Internal Affairs notified Mack that he was under investigation for his action related to his conduct when attending a medical procedure performed on an inmate. (Doc. 40 at 8) Internal Affairs sustained one of the allegations though Mack contends it was as a result of several witnesses providing “false and inconsistent testimony.” Id In June 2015, Mack was denied a promotion at Corcoran State Prison and a Caucasian person with less experience received the job. (Doc. 40 at 8) Mack alleges that Sharon McKay notified all facilities with promotional opportunities available of Mack’s pending personnel investigation. Id.

         In February 2015, Mack was given an “Adverse Personnel Action” related to misconduct occurring in January 2014. (Doc. 40 at 9) Mack contends the APA was sustained due to false statements made by Garcia and Mason. Id. It resulted in his pay being lowered by five percent for six months. Id.

         In August 2015, Mack was given another Adverse Personnel Action by Holland. (Doc. 40 at 9) In it, Mack was accused of leaving his post without notifying his supervisor, Mason. Id. This resulted in Mack losing pay for ten months. Id.

         II. Motion to Dismiss/Special Motion to Strike

         In the motion to dismiss, the defendants argue that they are immune from liability based upon the Noerr-Pennington doctrine and/or that the complaint should be stricken as a violation of the Anti-SLAPP statute. Likewise, the motion to dismiss argues that the complaint violates the Rooker-Feldman doctrine, the Younger doctrine abstention, res judiciata and the Eleventh amendment immunity, among other arguments.

         A. Requests for Judicial Notice

         The defendants request the Court take judicial notice of decisions of the SPB in case numbers 15-0147, 15-512, 15-1498, 14-01780W. (Doc. 51) The plaintiff also asks the Court to take judicial notice of the outcome of SPB decision 15-1498 (Doc. 62 at 2). Despite this, however, the plaintiff objects to the Court taking judicial notice of the documents proposed by the defendants despite that one of the documents is the same as the one for which he seeks judicial notice.

         The Court may take judicial notice of facts that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)(2). The Court must take judicial notice for a judicially noticeable fact “if requested by a party and supplied with the necessary information.” Fed.R.Evid. 201(c)(2). Here, the parties agree the Court may take judicial notice of the SPB decisions and, indeed, for this proposition cite to the same authorities. Thus, the Court GRANTS the requests and the Court will take judicial notice of the fact that the SPB has determined these actions and the dates on which it did so. The Court will also take notice of the fact that the plaintiff has not sought writ relief after any of the SPB decisions at issue.^[2] It DENIES the defendants’ request that the Court to take judicial notice of the declaration of Sharon McKay because this is not a proper document for judicial notice. Likewise, as to the motion to dismiss, the Court will not consider the declarations submitted by the plaintiff (Docs. 59, 63-65) as doing so is improper on a motion brought under Fed.R.Civ.P. 12(b).

         B. Statute of Limitations for the Whistleblower Claim

         The defendants argue that the whistleblower claim is not timely because it was filed more than one year after the events giving rise to the claim or more than one year after the SPB issued its decision. (Doc. 49 at 25-27) Notably, California Government Code § 8547.8 (West) provides, “[A]ny action for damages [in a “whistleblower” complaint] shall not be available to the injured party unless the injured party has first filed a complaint with the State Personnel Board pursuant to subdivision (a), and the board has issued, or failed to issue, findings pursuant to Section 19683.”

         The parties agree that the SPB issued its findings on September 18, 2014.^[3] (Doc. 49 at 27; Doc. 60 at 11) However, they disagree as to whether the statute of limitation is tolled during the 30-day period (plus, the plaintiff contends, an additional five days if the decision is mailed) before the decision becomes final. Notably, in State Board of Chiropractic Examiners v. Superior Court, 45 Cal.4th at 971, the California Supreme Court considered the language of § 8547.8 as follows:

Section 8547.8(c) imposes liability “in an action for damages” on “any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee” for disclosing improper governmental activities or unsafe conditions. But this provision includes an important caveat: “However, any action for damages shall not be available ... unless the injured party has first filed a complaint with the State Personnel Board ..., and the board has issued, or failed to issue, findings pursuant to Section 19683.” (§ 8547.8(c), italics added.) Section 8547.8(c) refers only to the issuance of “findings, ” nothing more. On its face, it does not require the complaining employee to petition the State Personnel Board for a hearing before an ALJ, nor does it require the employee to seek writ review of the board's findings. Section 8547.8(c) also makes express reference to section 19683, thereby clarifying the precise type of findings that satisfy the caveat.

Section 19683, subdivision (a), provides: “The State Personnel Board shall initiate a hearing or investigation of a written complaint of reprisal or retaliation ... within 10 working days of its submission. The executive officer shall complete findings of the hearing or investigation within 60 working days thereafter....” (Italics added.) This provision clearly uses the term “findings” to refer to the initial decision of the board’s executive officer (issued within 70 days of the filing of the complaint), and therefore section 8547.8(c)’s express cross-reference to section 19683 indicates that this initial decision constitutes the “findings” that satisfy section 8547.8(c).

         Nothing in the Supreme Court’s analysis indicates that the statute of limitations is tolled during the period between which the Executive Officer issues the findings and the 30-day period within which the parties may file for a petition for writ of administrative mandamus. Cal. Code Civ. Proc § 1094.5; Cal. Gov. Code § 11523 [The petition for writ of administrative mandamus must be filed within 30 days “after the last day on which reconsideration can be ordered.”] In short, the statute of limitations appears to run from the issuance of the findings and not from when the findings become “final.” Thus, because the complaint initiating this action (assuming the claim relates back) was filed on October 20, 2015, it was not filed timely.

         On the other hand, the plaintiff contends-though without citation to any authority-that because the findings of the Executive Director were mailed, the finality of the determination was tolled for five days. The Court disagrees. California Code of Civil Procedure § 1013 does not extend jurisdictional statutes of limitations. Fritts v. County of Kern, 135 Cal.App.3d 303, 307-308 (1982) [Section 1013 does not extend the 30-day period to file a complaint against a public entity after the trial court waived the claim filing requirement]; Smith v. City and County of San Francisco, 68 Cal.App.3d 227, 231-232 (1977) [Section 1013 does not extend the period for filing an action against a public entity after the tort claim is denied]. In Mario Saikhon, Inc. v. Agricultural Labor Relations Board, 140 Cal.App.3d 581, 582 (1983), the Agricultural Labor Relations Board issued findings that Saikhon committed unfair labor practices and mailed notice of the findings the same day. Saikhon filed his petition for writ of mandate 33 days later. Id. The court dismissed the petition as untimely because it was required to be filed 30 days after the issuance of the findings. Id. On appeal, Saikhon argued that he was entitled to the extra five days provided by § 1013 because the findings were mailed to him. Id. at 583. In rejecting this argument, the Court of Appeal held,

Section 1013, subdivision (a) by its terms deals only with the “case of service by mail, ” and with acts or responses which must be performed within a prescribed period “after the service” of a document. Labor Code section 1160.8 does not say the petition for review must be filed within 30 days after service of the Board's order; it requires the petition be filed within 30 days of the “issuance” of the Board's decision. Only if “issuance” is synonymous with “service” would section 1013, subdivision (a) apply in this case.

         The court held similarly in San Mateo Fed'n of Teachers v. Pub. Employment Relations Bd., 28 Cal.App.4th 150, 153 (1994), where the court determined that, “[t]he statutory time does not start with ‘service’ as required by section 1013, subdivision (a), but with issuance.’” Thus, the motion is GRANTED without leave to amend as to the Tenth cause of action.

         C. Noerrr-Pennington

         The Noerr-Pennington doctrine immunizes from liability those who petition any branch of government for redress. Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 1092 (9th Cir. 2000). The doctrine applies to actions brought under 42 USC § 1983 that are founded upon petitions to public agencies. Id. The doctrine applies to public agencies petitioning other public agencies. Id. Noerr-Pennington protects conduct that incidental to the government petition as well as that which is incidental to it. Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1185 (9th Cir.2005).

         Noerr-Pennington does not protect sham actions. Sham conduct may involve filing a single lawsuit (Kottle v. Northwesr Kidney Centers, 146 F.3d 1056, 1060 (9th Cir. 1998)) that is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits” and “an attempt to interfere directly with the business relationship of a competitor through the use of the governmental process-as opposed to the outcome of that process.” Hard 2 Find Accessories, Inc. v. Amazon.com, Inc., 2014 WL 6452173, at *3 (W.D. Wash. Nov. 17, 2014) citing Rock River Communs., Inc. v. Universal Music Group, Inc., 745 F.3d 343, 351 (9th Cir.2014). It may also include filing multiple lawsuits-whether some have merit-if ...