One Unnamed Deputy District Attorney et al v. County of Los Angeles et al, No. 2:2009cv07931 - Document 246 (C.D. Cal. 2011)

Court Description: ORDER GRANTING DEFENDANTS MOTIONS FOR SUMMARY ADJUDICATION 144 , 145 ;Because Burke was subsequently dismissed from this action, his motion is MOOT 146 by Judge Otis D Wright, II (lc)

Download PDF
One Unnamed Deputy District Attorney et al v. County of Los Angeles et al Doc. 246 1 O 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 11 ONE UNNAMED DEPUTY DISTRICT) ) ATTORNEY, et al. 15 ) ) ) ) vs. ) COUNTY OF LOS ANGELES, et al., ) ) Defendants. ) ___________________________________ ) 16 I. 12 13 14 Plaintiffs, CASE NO. CV 09-7931 ODW (SSx) ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY ADJUDICATION [144, 145] INTRODUCTION 17 The Association of Deputy District Attorneys (“ADDA”) brings this action on behalf 18 of a class of deputy district attorneys to protect their “First Amendment rights of speech 19 and association to engage in union-related activities without being subjected to Defendants’ 20 policy of discrimination and intimidation.” (Compl. ¶ 5.) Among other things, Plaintiffs 21 allege that Defendants punitively transferred several deputy district attorneys associated 22 with the ADDA, demoted them, awarded them undeserved mediocre performance reviews 23 and otherwise discriminated against them. 24 Defendants now move for summary judgment as to the ADDA’s Eighth and Ninth 25 claims. This Court previously granted the ADDA’s motion for a preliminary injunction 26 on March 2, 2010, and its motion for class certification on January 24, 2011. As the parties 27 are thus familiar with the facts of this case, the Court will only address those facts material 28 to disposition of the pending motions as they arise. Dockets.Justia.com 1 II. DISCUSSION 2 A. 3 Rule 56(c) requires summary judgment for the moving party when the evidence, 4 viewed in the light most favorable to the nonmoving party, shows that there is no genuine 5 issue as to any material fact, and that the moving party is entitled to judgment as a matter 6 of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of establishing the 7 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 8 (1986). That burden may be met by “‘showing’ – that is, pointing out to the district court 9 – that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. 10 Once the moving party meets its initial burden, Rule 56(e) requires the nonmoving 11 party to go beyond the pleadings and identify specific facts that show a genuine issue for 12 trial. Id. at 323-34. The nonmoving party must use “[its] own affidavits, . . . depositions, 13 answers to interrogatories, [or] admissions on file” to designate such specific facts. 14 Celotex, 477 U.S. at 324 (citation omitted). “A scintilla of evidence or evidence that is 15 merely colorable or not significantly probative does not present a genuine issue of material 16 fact.” Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). Legal Standard: Summary Judgment 17 Only genuine disputes – where the evidence is such that a reasonable jury could 18 return a verdict for the nonmoving party – over facts that might affect the outcome of the 19 suit under the governing law will properly preclude the entry of summary judgment. See 20 Anderson, 477 U.S. at 248. It is not the task of the district court “to scour the record in 21 search of a genuine issue of triable fact. [Courts] rely on the nonmoving party to identify 22 with reasonable particularity the evidence that precludes summary judgment.” Keenan v. 23 Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 24 25 26 27 28 2 1 B. 2 On June 30, 2011, Defendants County of Los Angeles (“County”), Steve Cooley, 3 Curt Hazell, John Spillane, John Zajec, Jacquelyn Lacey, Janet Moore, Mario Trujillo and 4 Lance Wong moved for partial summary judgment as to the Eighth and Ninth claims in 5 Plaintiffs’ First Amended Complaint. (See Docket Nos. 144, 145.) On July 1, 2011, 6 Defendant Peter A. Burke filed his own motion. Because Burke was subsequently 7 dismissed from this action, his motion is MOOT. (Docket No. 146.) Defendants’ Motions for Summary Judgment 8 Furthermore, the “ADDA has no objection to summary judgment being granted to 9 [all Defendants other than the County] as to [Claim] VIII and to all Defendants as to 10 [Claim] IX.” (Opp’n at 2.) Accordingly, the Court turns to Plaintiffs’ Eighth Claim against 11 the County, violation of Plaintiffs’ constitutional right to informational privacy. 12 Informational Privacy 13 The ADDA alleges that former defendant Peter Burke obtained a list from the 14 County’s Employee Relations Commission (“ERCOM”) which identified deputies who had 15 signed union cards. (Mot. at 1.) According to the ADDA, Burke then attached a copy of 16 that list to a complaint he filed in state court and gave copies to “management officials” in 17 the District Attorney’s Office. Plaintiffs seek relief under 42 U.S.C. § 1983 against the 18 County on the theory that Burke’s dissemination of the list was undertaken pursuant to a 19 County custom and policy of discriminating against ADDA members. 20 It is, and shall remain an open question whether Plaintiffs have a constitutional right 21 to informational privacy. Despite a recent opportunity to settle the issue, the Supreme 22 Court instead followed precedent and “assume[d] for present purposes that the [alleged 23 invasions] implicate a privacy interest of constitutional significance.” Nat. Aeronautics and 24 Space Admin. v. Nelson, 131 S.Ct. 746, 756 (2011) (citing Whalen v. Roe, 429 U.S. 589, 25 599 (1977). This court does the same; especially because Defendants’ motions turn not on 26 constitutional principles, but on municipal liability under Section1983. 27 28 3 1 The following is undisputed. In late 2008, former defendant Burke, who is himself 2 an ADDA member, filed an action in state court challenging certain actions taken by the 3 ADDA. (UF 1.) On October 14, 2008, Burke submitted a public records request to 4 ERCOM asking for records relating to ERCOM’s designation of the ADDA as the 5 representative for the County employees’ bargaining unit comprised of deputy district 6 attorneys in Grades I through IV. (UF 2.) In response, ERCOM sent Burke a box of 7 documents containing “among other things a list (the “List”) of names of deputy district 8 attorneys with markings next to certain [ ] names.” (UF 4.) Burke made a copy of the List 9 and attached it to the complaint he filed against the ADDA board. (UF 5.) After Burke 10 filed his lawsuit, he shared copies of the complaint (including the attached List) with a 11 number of colleagues. (UF 6.) Those coworkers did not give copies of the List “they 12 received from Burke – or encourage[] or instruct[] anyone else to give copies – to Cooley 13 or any other management officials, and none of them kept a copy of that document after 14 Burke returned a few days later to retrieve it.” (UF 12.) 15 Burke ultimately prevailed in his state action and was awarded attorneys’ fees under 16 a state statute authorizing fee awards to successful litigants whose efforts result in “the 17 enforcement of an important right affecting the public interest.” In opposing that award, 18 the ADDA argued that the harm caused by Burke’s dissemination of the List outweighed 19 any benefits that might have resulted from the litigation. The California Court of Appeal 20 disagreed, finding Burke “did not know the list should have been kept confidential” and 21 that he made “acceptable” efforts to remedy the “inadvertent disclosure.” Burke v. Ipsen, 22 189 Cal. App. 4th 801, 824 (2010). 23 Defendants argue the ADDA may not maintain this claim against the County 24 because, among other things, Burke’s dissemination of the List did not involve “state 25 action” and, even if it did, Burke did not act, and the alleged constitutional violations were 26 not visited upon Plaintiffs pursuant to a County practice or custom. 27 28 4 1 State Action 2 The ADDA argues “Burke’s abuse of his status as a [deputy district attorney] to gain 3 access to restricted government offices in order to deliver to Cooley management officials 4 highly sensitive, private information about employees [ ] satisfies the color of state law 5 requirement for §1983.” (Opp’n at 14.) Relying on out-of-circuit authority, the ADDA 6 contends “defendants act under color of state law when they abuse their authority as 7 government officials in order to enter offices where they subsequently commit 8 constitutional violations.” (Opp’n at 13-14) (citing United States v. Colbert, 172 F.3d 594 9 (8th Cir. 1999) and Gillard v. Schmidt, 579 F.2d 825 (3d Cir. 1978)). 10 In the Ninth Circuit, Section 1983’s color-of-state-law requirement is met only 11 where the defendant has engaged in “[m]isuse of power, possessed by virtue of state law 12 and made possible only because the wrongdoer is clothed with the authority of state law.” 13 United States v. Classic, 313 U.S. 299, 326 (1941); see also Huffman v. County of Los 14 Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998) (“an officer who is ‘pursuing his own 15 goals…’ does not act under color of law, unless he ‘purports or pretends’ to do so”). 16 Here, it cannot be said that the alleged violation–Burke’s dissemination of the List 17 to coworkers–was made possible only because Burke was clothed with the authority of 18 state law. As the ADDA would have it, because Burke happened to disseminate the List 19 while on duty as a deputy district attorney, he acted under color of state law. (Opp’n at 13- 20 15.) But this argument fails to heed, or satisfy the Supreme Court’s directive that the 21 claimed violation be “made possible only because the wrongdoer is clothed with the 22 authority of state law.” Classic, 313 U.S. at 326 (emphasis added). Burke, after all, could 23 easily have mailed the documents to those individuals, handed them over outside work, or 24 employed any one of several delivery methods.1 Simply, Burke’s alleged violation was not 25 made possible only by virtue of his authority and does not constitute state action. 26 27 28 1 As Defendants observe, “[t]he fact that Burke’s ability to distribute copies of his complaint was not dependent on his status or authority as a [deputy district attorney] distinguishes the cases cited by ADDA in support of its argument that Burke was acting under color of state law.” (Reply at 8.) 5 1 2 III. CONCLUSION The County’s motion for summary judgment is GRANTED in its entirety. 3 4 SO ORDERED 5 September 19, 2011 6 7 8 _________________________ OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.