United States District Court, E.D. California
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.
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.
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.
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.
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.
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
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.
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.
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 §
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
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.
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.
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.
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.
MOTION TO DISMISS
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).
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).
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
Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th
Cir.2014) (citation omitted).
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
Court addresses arguments as to the Seventh, Eighth and Ninth
Cause of Action in turn.
SEVENTH CAUSE OF ACTION: DENIAL OF RIGHTS IN VIOLATION OF
SECTION 3260 OF THE CALIFORNIA GOVERNMENT CODE
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
Doc. No. 47 ¶¶ 149-151.
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
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.
Voluntary Dismissal of Claims
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.
Government Tort Claims Act
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).
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)).
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.
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], ” 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).
provides no argument as to why the findings as to the
PSOPBORA in Lozada are not applicable
here. 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