Phillips-Kerley v. City of Fresno

          ORDER ON DEFENDANT'S MOTION TO DISMISS SECOND AMENDED COMPLAINT; FOR MORE DEFINITE STATEMENT; AND TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT (DOC. NO. 50)

         INTRODUCTION

         David Phillips-Kerley brings nine causes of action against the City of Fresno in his Second Amended Complaint (“2AC”), arising from harassment, retaliation and other forms of wrongdoing that he allegedly experienced over a span of several years as a firefighter with the City of Fresno Fire Department (“Fresno Fire Department”). Doc. No. 47.

         The City of Fresno now moves for dismissal of three of the causes of action in the 2AC. Doc. No. 50-1. The City of Fresno also moves the Court to strike portions of the 2AC and to order a more definite statement. Id.

         For the reasons that follow, the Court will grant the motion to dismiss, grant the motion for a more definite statement, and deny the motion to strike as moot. Plaintiff will be afforded one opportunity to amend certain claims. The Court instructs counsel for Phillips-Kerley to give due consideration to the findings in this Order in any amended pleading.

         FACTUAL BACKGROUND

         Phillips-Kerley has been employed by the Fresno Fire Department since 2004. Doc. No. 47 ¶¶ 10-12. In August 2010, as he was preparing to go off-duty, Phillips-Kerley asked a co-worker to remove his towels from the dryer when they were done and left a post-it note on the dryer to notify others that the towels belonged to him. Id. ¶16. When Phillips-Kerley returned to work the following week, he found “post-it notes left for him everywhere with messages placed throughout the kitchen.” Id. Phillips-Kerley reported the incident to Captain Ron Caldwell, but Caldwell dismissed the incident as a “joke” and refused to investigate. Id. ¶¶ 17, 99. Shortly thereafter, in September 2010, Caldwell and Phillips-Kerley's supervisor, Captain Mike Gill, subjected Phillips-Kerley to questioning without allowing Phillips-Kerley representation or giving him “notice of the subject of their investigation.” Id. ¶ l7. Phillips-Kerley, for his part, “notified … Gill and Caldwell, ” in the course of these interactions, that “he opposed their disparate treatment of [him] based on his prior opposition to their discriminatory and unlawful practices.” Id. ¶ 99. The day after he was questioned by Gill and Caldwell, Phillips-Kerley met with Chief Bruegman “to report that Gill and Caldwell had investigated him without following the proper procedures” and Bruegman “advised [Phillips-Kerley] that he should ‘move forward with caution.'” Id. ¶ 18.

         Bruegman resigned in October 2010, and the day after his resignation, Battallion Chief Charles Tobias “questioned [Phillips-Kerley] about his report to Chief Bruegman.” Doc. No. 47 ¶ 20. Tobias told Phillips-Kerley that “someone ‘did that to him once and they regretted it.'” Id. Phillips-Kerley “understood this comment to be a threat of retaliation” and requested a transfer “in order to avoid harassment by” Gill, Caldwell and Tobias. Id. ¶¶ 20-21. In the course of the ensuing years, Phillips-Kerley was subjected to various forms of retaliation on multiple occasions, including unwarranted disciplinary action.

         PROCEDURAL BACKGROUND

         Phillips-Kerley filed this action on March 28, 2018. Doc. No. 1. The original Complaint alleged 21 causes of action under federal law, state statutes and common law against the Fresno Fire Department and more than 20 individual defendants. Id.

         On May 15, 2018, the City of Fresno filed a motion to dismiss, a motion for a more definite statement and motion to strike portions of the Complaint. Doc. No. 10. Shortly thereafter, the Court issued an order, based on a stipulation between Phillips-Kerley and the City of Fresno, granting Phillips-Kerley leave to file a First Amended Complaint (“1AC”) “attempt[ing] to cure the defects raised in [the City of Fresno's] motion.” Doc. No. 14. The 1AC, as filed on June 18, 2018, alleged 21 causes of action against the City of Fresno (in place of the Fresno Fire Department) and more than 20 individual defendants. Doc. No. 13. On July 6, 2019, the City of Fresno filed a motion under Rule 12 of the Federal Rules of Civil Procedures as to the 1AC. Doc. No. 16. As relevant here, the City of Fresno sought dismissal of all six of Phillips-Kerley's causes of action under the Firefighter's Procedural Bill of Rights Act (the “FPBORA”), Cal. Gov. Code §§ 3250-3262, for being duplicative, failing to state a claim and violating the applicable statute of limitations. Id. at 3:7-4:5.

         In opposing the City of Fresno's motion, Phillips-Kerley conceded that many of his causes of action were duplicative, barred by the statute of limitations, or legally baseless, in addition to conceding dismissal of his prayer for punitive damages. Doc. No. 19, p. 3 of 17, lines 5-18. Specifically, Phillips-Kerley acknowledged “that the statutes of limitations had expired on his tenth, eleventh, thirteenth and fourteenth causes of action” (under Sections 3253(e)(1), 3253(i), 3254(b) and 3255 of the California Government Code, respectively) and stated that he would voluntarily dismiss those claims with prejudice. Id., p. 3 of 17, lines 5-10. Further, Phillips-Kerley conceded that “the twelfth and fifteenth causes of action [under Sections 3254(a) and 3256.5(b) of the California Government Code, respectively] [were] duplicative of the sixteenth cause of action” and agreed to “dismiss the twelfth and fifteenth causes of action with prejudice and seek remedy for [those] claims under the sixteenth cause of action.” Id., p. 3 of 17, lines 8-10. The sixteenth cause of action was under Section 3260 of the California Government Code, which broadly provides a cause of action and a full complement of remedies for violations of “rights and protections guaranteed by” the FPBORA. See Cal. Gov. Code § 3260.

         On October 19, 2018, the Court granted in part and denied in part the City of Fresno's motion to dismiss, granted the City of Fresno's motion for a more definite statement and denied, as moot, the City of Fresno's motion to strike as to the 1AC. Doc. No. 24. In doing so, the Court granted Phillips-Kerley leave to amend but “instruct[ed] the parties to consider the reasoning of [the] Order as applied to the Second Amended Complaint” in filing an amended pleading. Doc. No. 24 at 1:20-21. Specifically, the Court stated:

Now that [Phillips-Kerley] has conceded that nearly two-thirds of his claims and his prayer for punitive damages are not cognizable, and that incidents prior to December 2015 are time-barred for his Title VII claims, it is highly likely that [Phillips-Kerley's] statement of facts contains numerous orphaned allegations irrelevant to this case.

Id. at 3:17-20.

         Moreover, the Court noted that several causes of action incorporated irrelevant paragraphs from the fact section of the 1AC, id. at 3:21-22, and expressly directed Phillips-Kerley to “make sure any incorporations in the 2AC reference the proper paragraphs.” Id. at 5:7-9. Finally, the Court relied on Phillips-Kerley's representation that he had elected not to pursue certain claims and, thus, did not address such claims (including claims under the FPBORA) in deciding the City of Fresno's motion to dismiss as to the 1AC. Id. at 5:18-25.

         On June 18, 2018, Phillips-Kerley filed the 2AC, in which he eliminated some causes of action completely; fashioned an omnibus FPBORA cause of action under Section 3260 of the California Government Code (the Seventh Cause of Action); identified the City of Fresno as the defendant for his cause of action under Administrative Order 2-16 of the City of Fresno (the Eighth Cause of Action); and added a claim for violation of procedural due process under 42 U.S.C. § 1983 (the Ninth Cause of Action). Doc. No. 47. The City of Fresno now brings a motion to dismiss the Seventh, Eighth and Ninth Causes of Action, as well as a motion for “a more definite statement of the claims” and a motion to strike/dismiss “[a]ll claims of FPBORA violations that took place prior to March 28, 2015” and “[a]ll claims of due process violations prior to March 28, 2016.” Doc. No. 50.

         For ease of comprehension, the Court will first decide the City of Fresno's motion to dismiss, and then address the City of Fresno's motion for a more definite statement and motion to strike.

         DEFENDANT'S MOTION TO DISMISS

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A claim may be dismissed because of the plaintiff's “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir.2015).

         To avoid a Rule 12(b)(6) dismissal for a lack of facts, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted); Mollett, 795 F.3d at 1065. All well-pleaded allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Faulkner v. ADT Sec. Servs., 706 F.3d 1017, 1019 (9th Cir.2013). However, the court need not accept conclusory allegations, allegations contradicted by exhibits attached to the complaint or matters properly subject to judicial notice, unwarranted deductions of fact or unreasonable inferences. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.2010).

         The Ninth Circuit has distilled the following principles for motions under Rule 12(b)(6):

First, to be entitled to the presumption of truth, allegations 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. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir.2014) (citation omitted).

         Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely granted when justice so requires, ” bearing in mind “the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc) (ellipses omitted). However, a court “may exercise its discretion to deny leave to amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., [and] futility of amendment.'” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir.2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see Garmon v. County of L.A., 828 F.3d 837, 842 (9th Cir.2016).

         The Court addresses arguments as to the Seventh, Eighth and Ninth Cause of Action in turn.

         I. SEVENTH CAUSE OF ACTION: DENIAL OF RIGHTS IN VIOLATION OF SECTION 3260 OF THE CALIFORNIA GOVERNMENT CODE

         The Seventh Cause of Action, which is brought under Section 3260 of the California Government Code, “re-alleges and incorporates” essentially every allegation in the 2AC and further states:

Each instance of conduct alleged above in this Complaint constitutes a denial of Plaintiff's rights under the [FPBORA] including the denial of Plaintiff's right to have representation at disciplinary meetings and the improprieties and illegalities of Plaintiff's many disciplines.

Doc. No. 47 ¶¶ 149-151.

         The City of Fresno contends that the Seventh Cause of Action should be dismissed in its entirety because Phillips-Kerley has failed to allege facts sufficient to show a violation of any rights under the FPBORA and because Phillips-Kerley is improperly attempting to resuscitate causes of action as to certain FPBORA provisions that he voluntarily dismissed with prejudice in his opposition to the City of Fresno's motion to dismiss the 1AC. Doc. No. 50-1, Part III.B.1. Further, the City of Fresno argues that Phillips-Kerley failed to plead compliance with (or exemption from) the Government Tort Claims Act (“Claims Act”) and that the Seventh Cause of Action is barred, at least in part, by the applicable statute of limitations. Id., Part III.B.2.

         Phillips-Kerley, for his part, contends that the City of Fresno's assertion that he voluntarily dismissed his FPBORA claims is “disingenuous.” Doc. No. 53, Part II.B.i. Specifically, he argues that, in opposing the City of Fresno's motion to dismiss the 1AC, he expressly reserved the right to bring an omnibus cause of action under the FPBORA in the 2AC (replicating the Sixteenth Cause of Action in the 1AC) and stated that he would dismiss the Tenth through Fifteenth Causes of Action in the 1AC (addressing specific rights under the FPBORA) to streamline his pleading. Id. Further, he states that his allegation that he “has met all procedural requirements for filing this Complaint” satisfies pleading requirements as to the Claims Act, but that he is willing to amend the 2AC “to allege how he has substantially complied” with the Claims Act if the Court deems it necessary. Id., Part III.B.iii. Finally, Phillips-Kerley does not dispute that claims under the FPBORA are subject to a three-year statute of limitations but argues that he has set forth numerous incidents “[d]uring the three years prior to the filing of the Complaint, from March 28, 2015, to March 28, 2018, ” evidencing “numerous violations” of the FPBORA including Section 3254, subdivision (a), of the California Government Code; Section 3254, subdivision (d), of the California Government Code; and Section 3253, subdivision (i), of the California Government Code. Id., Part III.B.ii.

         a. Voluntary Dismissal of Claims

         Phillips-Kerley's opposition to the City of Fresno's motion to dismiss the 1AC states that Phillips-Kerley “will dimiss” claims under Sections 3253(e)(1), 3253(i), 3254(b) and 3255 of the California Government Code with prejudice and gives no indication that he would continue prosecuting such claims. Doc. No. 19 ¶ 4. Further, Phillips-Kerley states that he would replead claims pleaded under Section 3254, subdivision (a), and Section 3256.5, subdivision (b), as claims under Section 3260. Id. ¶ 5. The Court accepted those representations and, thus, did not substantively address the FPBORA claims in deciding the City of Fresno's motion. Doc. No. 24 at 5:18-19. The resulting Order, however, does not itself dismiss any FPBORA claims or otherwise limit the pleading of FPBORA claims in the 2AC. See id. Moreover, the City of Fresno makes no effort to show prejudice from the repleading of the FPBORA claims and provides no authority showing that the statements in Phillips-Kerley's opposition are alone sufficient to effect dismissal with prejudice of the FPBORA claims at issue. The Court, therefore, declines to dismiss any portion of the Seventh Cause of Action on the basis of statements made as to the dismissal of FPBORA claims in Phillips-Kerley's opposition to the City of Fresno's motion to dismiss the 1AC.

         b. Government Tort Claims Act

         Under the Government Tort Claims Act, no suit for “money or damages” may be brought against a public entity until a written claim has been presented to the public entity and the claim either has been acted upon or is deemed to have been rejected. Cal. Gov. Code, §§ 905, 945.4. A suit for “money or damages” includes all actions where the plaintiff is seeking monetary relief, regardless whether the action is founded in “tort, contract or some other theory.” Baines Pickwick Ltd. v. City of Los Angeles, 72 Cal.App.4th 298, 307 (1999) (internal quotation marks, italics and citation omitted).

         Depending on the type of claim, the claim must be filed or presented to the public entity no later than six months or one year after the cause of action accrues. Cal. Gov. Code § 911.2, subd. (a). The timely presentation of a claim is a precondition to bringing suit. Rubenstein v. Doe No. 1, 3 Cal. 5th 903, 906 (2017), as modified on denial of reh'g (Nov. 1, 2017); see Mangold v. California Pub. Utilities Comm'n, 67 F.3d 1470, 1477 (9th Cir.1995). “Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to [dismissal] for not stating facts sufficient to constitute a cause of action.” Pringle v. Cardall, 2019 WL 330854, at *4 (E.D.Cal. Jan. 14, 2019) (quoting Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 209 (2007)).

         The City of Fresno contends that Phillips-Kerley's FPBORA claim is subject to dismissal for the threshold reason that he is seeking money damages against the City, but has not alleged compliance with the Claims Act. Doc. No. 50-1, Part III.B.2. Phillips-Kerley, for his part, argues that the allegation that he “has met all procedural requirements for filing [the] Complaint” satisfies the pleading requirement as to the Claims Act and that, in any event, the Claims Act does not apply because Section 3260, subdivision (b), of the California Government Code provides that the California Superior Court “shall have initial jurisdiction” over “any proceeding” under the FPBORA. Doc. No. 53, Part II.B.iii.

         The conclusory allegation, however, that Phillips-Kerley “has met all procedural requirements for filing [the] Complaint” does not constitute the required allegation of facts as to compliance with-or exemption from-the Claims Act. See Pringle, 2019 WL 330854 at *4. And, in deciding a case involving the Public Safety Officer's Procedural Bill of Rights Act (“PSOPBORA”), which the FPBORA “mirror[s], ”^[1] the California Court of Appeals squarely found that a provision vesting “initial jurisdiction” in the California Superior Court relieved the plaintiff peace officer “from the requirement that he or she exhaust administrative remedies” but did “not relieve the officer from the requirement of presenting a claim in conformity with the [] Claims Act where the officer [sought] money or damages as a remedy.” See Lozada v. City & Cty. of San Francisco, 145 Cal.App.4th 1139, 1156 (2006).

         Phillips-Kerley provides no argument as to why the findings as to the PSOPBORA in Lozada are not applicable here.^[2] The Court therefore finds that Phillips-Kerley has failed to satisfy his obligations under the Claims Act with respect to his FPBORA claim and the City of Fresno's motion to dismiss is GRANTED as to the Seventh Cause of Action. See Pringle, 2019 WL 330854 at *4. Since this pleading defect could potentially be cured, the motion is granted WITH LEAVE TO AMEND. Lopez, 203 F.3d at 1127. In anticipation of the possibility that Phillips-Kerley will amend his FPBORA claims, the Court addresses the City of Fresno's other arguments as to dismissal below.

         c. Statute ...