Richter v. Ausmus et al, No. 3:2019cv08300 - Document 47 (N.D. Cal. 2020)
Court Description: ORDER GRANTING DEFENDANTS' 39 MOTION TO DISMISS by Judge William H. Orrick. Defendants' motion is GRANTED. Richter may proceed on the fifth cause of action. She is granted leave to amend her seventh and eighth causes of action against defendants within the next 30 days. (jmdS, COURT STAFF) (Filed on 7/21/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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Richter v. Ausmus et al Doc. 47 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 1 of 13 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JULIA RICHTER, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 19-cv-08300-WHO ORDER GRANTING DEFENDANTS' MOTION TO DISMISS v. LISA AUSMUS, et al., Re: Dkt. No. 39 Defendants. 12 Defendants Lisa Ausmus, Damon Gilbert, Bryan Hubbard, Anne Kirkpatrick, Sekou 13 Millington, and Todd Mork (“defendants”) move to dismiss plaintiff Julia Richter’s Second 14 Amended Complaint (“SAC”). I previously granted defendants’ motion to dismiss Richter’s First 15 Amended Complaint and granted her leave to amend. She has not cured many of the deficiencies 16 with her prior complaint and has asserted a number of new causes of action. Defendants’ motion 17 is GRANTED for failure to state a claim, except with respect to the fifth cause of action (against 18 which defendants provided no argument). For reasons described below, I grant Richter leave to 19 amend her seventh and eighth causes of action. Her first, second, third, fourth, and sixth, and 20 ninth through thirteenth causes of action are dismissed WITH PREJUDICE. 21 BACKGROUND 22 The facts of this case are discussed in detail in my prior Order. Dkt. No. 28 (“Order”). 23 Richter, a former employee for the Oakland Police Department (“OPD”), alleges two primary 24 sources of misconduct on the part of defendants. First, she asserts that she was injured by 25 improper defensive tactics trainings conducted by defendant Gilbert. See Dkt. No. 34 (“SAC”) ¶ 26 160. Second, she asserts that she was subject to a wrongful investigation in order to prevent her 27 from obtaining disability retirement benefits, and which ultimately resulted in her termination. Id. 28 ¶¶ 51-56, 146. I granted defendants’ motion to dismiss Richter’s First Amended Complaint on Dockets.Justia.com Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 2 of 13 1 March 24, 2020, and Richter filed the SAC on May 13, 2020. Defendants moved to dismiss on 2 May 27, 2020. Dkt. No. 40 (“Mot.”). Richter filed an opposition on June 10, see Dkt. No. 41 3 (“Oppo.”), and defendants filed a reply on June 17. Dkt. No. 42 (“Reply”). I heard the matter on 4 July 8. Dkt. No. 45. United States District Court Northern District of California 5 LEGAL STANDARD 6 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 7 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 8 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 9 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when 10 the plaintiff pleads facts that “allow[] the court to draw the reasonable inference that the defendant 11 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). There must be 12 “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not 13 require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a 14 right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. 15 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 16 Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 17 plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is 18 not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 19 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 20 2008) (citation omitted). “Dismissal can be based on the lack of a cognizable legal theory or the 21 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 22 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). If the court dismisses the complaint, it “should grant 23 leave to amend even if no request to amend the pleading was made, unless it determines that the 24 pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 25 1122, 1127 (9th Cir. 2000) (citation omitted). In making this determination, the court should 26 consider factors such as “the presence or absence of undue delay, bad faith, dilatory motive, 27 repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing 28 party and futility of the proposed amendment.” Moore v. Kayport Package Express, 885 F.2d 2 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 3 of 13 1 531, 538 (9th Cir. 1989). DISCUSSION 2 3 I. Richter’s first claim for relief alleges a “violation of the Fourteenth Amendment 4 United States District Court Northern District of California STATE-CREATED DANGER 5 substantive due process right to be free from state created danger caused by OPD custom of 6 employing POST-unapproved techniques and POST-untrained instructors.” SAC ¶¶ 155-173. 7 This cause of action purportedly states a claim pursuant to the “state-created danger” or “danger 8 creation” exception to the rule that members of the public have no constitutional right to sue state 9 employees who fail to protect them against harm inflicted by third parties. Pauluk v. Savage, 836 10 F.3d 1117, 1123–24 (9th Cir. 2016). “The state-created danger exception creates the potential for 11 § 1983 liability where a state actor ‘creates or exposes an individual to a danger which he or she 12 would not have otherwise faced.’” Campbell v. State of Washington Dep’t of Soc. & Health 13 Servs., 671 F.3d 837, 845 (9th Cir. 2011) (citation omitted). State-created danger arises when the 14 state affirmatively exposes the plaintiff to a “known or obvious danger” and does so with 15 “deliberate indifference.” Id. at 845–846. Deliberate indifference requires that the state actor 16 actually intend to expose the plaintiff to such risks without regard to the consequences. Id. at 846. 17 Richter’s cause of action based upon state-created danger fails because she does not 18 adequately allege that the conduct at issue satisfies the requirement of “affirmative action” by the 19 state. The alleged problems with the defensive tactics trainings do not amount to a known, 20 obvious, and particularized danger. “[A] plaintiff must show that state action as opposed to 21 inaction placed him in danger,” and “[a] mere failure—or even refusal—to act in response to a 22 known danger does not suffice.” Ogbechie v. Covarrubias, No. 18-CV-00121-EJD, 2020 WL 23 3103789, at *5 (N.D. Cal. June 11, 2020). A claim for a state-created danger must be based on 24 “more than merely a failure to create or maintain a safe work environment.” Pauluk, 836 F.3d at 25 1124. 26 The state-created danger applies in situations where government actors ejected a drunk 27 man from a bar on an extremely cold night, locked a man needing serious medical attention in a 28 house and canceled his request for paramedics, and assigned a nurse to work alone with a known 3 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 4 of 13 1 and violent sex-offender. Campbell, 671 F.3d at 847 (collecting cases). In these instances, 2 affirmative conduct placed the injured party in a worse position than if the state had not acted at 3 all. The injury suffered was both obvious and particularized (e.g., the party could freeze, die from 4 medical complications, or be sexually assaulted). 5 6 employee requested not to be transferred to a particular location due to his concerns about mold, 7 but was transferred involuntarily. Pauluk, 836 F.3d at 1119. Several other employees had 8 suffered harmful health effects from mold exposure and defendants actively tried to conceal the 9 danger posed by the mold. Id. After the employee was transferred to the dangerous location, he 10 United States District Court Northern District of California The Pauluk case upon which Richter relies is particularly instructive. There, a state suffered from toxic mold exposure. Id. 11 These cases all involve contexts that differ from the facts alleged here. First, the alleged 12 defensive tactics trainings are not affirmative conduct on behalf of OPD that created an “actual, 13 particularized danger [Richter] would not otherwise have faced.” Kennedy v. City of Ridgefield, 14 439 F.3d 1055, 1063 (9th Cir. 2006). Richter does not contend that the trainings were inherently 15 dangerous. Thus, any OPD requirement that Richter participate in the trainings themselves cannot 16 be “affirmative conduct.” Instead, Richter asserts that the trainings led by defendant Gilbert were 17 unsafe because he taught techniques that were not POST certified. See, e.g., SAC ¶ 157. But she 18 fails to identify any affirmative action taken by OPD or the individual defendants regarding 19 Gilbert’s choice of trainings. Richter also does not allege that she (or other officers) raised issues 20 with the trainings or requested exemption from these trainings but were forced to attend. 21 For similar reasons, Gilbert’s trainings did not present a particularized and obvious danger. 22 Although Richter alleges serious injuries suffered during trainings, she largely bases her argument 23 regarding the dangerous nature of the trainings on failure to comply with POST regulations. This 24 does not suffice to show that the training classes as conducted by Gilbert would obviously injure 25 participants in a particular way. Instead, Richter’s allegations effectively state that OPD failed to 26 maintain a safe work environment. See Campbell, 671 F.3d at 845 (rejecting argument that failure 27 to provide adequate plan for caring for developmentally disabled individual created an affirmative 28 danger). Thus, Richter cannot allege that she was in a “worse position than that in which [she] 4 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 5 of 13 1 would have been in had [the state] not acted at all.” Pauluk, 836 F.3d at 1124. Because Richter cannot state a claim under the state-created danger exception, her first 2 3 cause of action is DISMISSED WITH PREJUDICE. 4 II. Richter’s second cause of action alleges a Section 1983 claim based on excessive force. 5 United States District Court Northern District of California EXCESSIVE FORCE 6 SAC ¶¶ 174-187. Richter states that this cause of action is based upon the Fourteenth Amendment 7 substantive due process clause. In my prior Order, I noted that to the extent Richer alleges that the 8 defendants’ use of excessive force violated her due process rights, she had failed to state a claim 9 because she did not allege that “the defendants’ conduct in violating this right was so egregious as 10 to shock the conscience.” Order at 6, 9. She has not provided any additional facts to change this 11 conclusion. Richter’s excessive force claim is based upon defendants’ alleged failure to use POST- 12 13 approved techniques and to properly train officers. See, e.g., SAC ¶¶ 175-177, 179.1 This conduct 14 does not satisfy the standard for a substantive due process claim, which applies to “only the most 15 egregious official conduct.” Moody v. Cty. of Santa Clara, No. 5:15-CV-04378-EJD, 2019 WL 16 6311406, at *5 (N.D. Cal. Nov. 25, 2019). As one case that Richter cites points out, even if failure 17 to properly supervise defensive tactics instruction is “worthy of rebuke, [it] does not shock the 18 conscience.” Hallstein v. City of Hermosa Beach, 87 F. App’x 17, 18 (9th Cir. 2003). Since 19 Richter has failed to allege any facts in either her first or second complaints that would give rise to 20 a cause of action for excessive force, this claim fails. Richter also asserts a separate “failure to train” claim against defendants. SAC ¶ 183. 21 22 However, “[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a 23 municipality—a ‘policy’ as defined by our prior cases—can a city be liable for such a failure 24 under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 1205, 103 L. 25 Ed. 2d 412 (1989); see also Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008) (“Under Harris and 26 27 28 I note that some of Richter’s “excessive force” allegations mirror her “failure to train” allegations. SAC ¶ 183. For the reasons discussed above, these allegations do not state a cause of action. 5 1 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 6 of 13 1 progeny, one must demonstrate a ‘conscious’ or ‘deliberate’ choice on the part of a municipality in 2 order to prevail on a failure to train claim.”). Richter attempts to plead this element by stating that 3 “Oakland officials had a long-standing practice (over two years) to employ POST-untrained 4 instructors and allowing the use of dangerous POST-unapproved techniques,” but asserts that this 5 refers only to the decision to employ Gilbert. SAC ¶¶ 25, 185 (stating that all instructors received 6 POST certification under previous lead instructor). Because there is no deliberate or conscious 7 choice by OPD regarding the allegedly defective training, Richter does not adequately state a 8 claim for failure to train. Accordingly, Richter’s second cause of action is DISMISSED WITH PREJUDICE. 9 United States District Court Northern District of California 10 III. 11 FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS RIGHT TO BE ONLY TRIED BY SOVEREIGN WHOSE CRIMINAL LAWS ARE ALLEGEDLY VIOLATED AND RATIFICATION OF SAID VIOLATIONS 12 Richter alleges that she “has a Fourteenth Amendment substantive due process right to be 13 punished for the alleged crime only by the sovereign power whose laws she allegedly 14 transgressed.” SAC ¶ 85. As discussed at length in my prior orders, Richter was not criminally 15 charged with a crime. Richter’s third claim for relief is DISMISSED WITH PREJUDICE. 16 IV. DELIBERATE FABRICATION OF EVIDENCE Richter’s fourth claim for relief asserts a violation of her substantive due process to be free 17 18 from fabricated evidence and the right to a fair trial. SAC ¶ 195; Oppo. 6-7. I have previously 19 held that Richter’s claims for deliberate fabrication of evidence are barred because she was not 20 subject to criminal charges. Assuming that Richter brings such a claim based on a substantive due 21 process violation,2 she again must allege conduct that “shocks the conscience.” See, e.g., 22 Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010). To do so, she 23 must “at a minimum, point to evidence that supports at least one of the following two 24 propositions: (1) Defendants continued their investigation of [plaintiff] despite the fact that they 25 26 27 28 Although Costanich involved a civil child abuse proceeding, the court noted that “deliberately falsifying information during civil investigations which result in the deprivation of protected liberty or property interests may subject them to § 1983 liability.” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1115 (9th Cir. 2010). It does not appear that the FBI investigation in this case, in which no charges were filed, is analogous to this situation. 6 2 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 7 of 13 1 knew or should have known that he was innocent; or (2) Defendants used investigative techniques 2 that were so coercive and abusive that they knew or should have known that those techniques 3 would yield false information.” Id. (citation omitted). United States District Court Northern District of California 4 Richter alleges that defendant Ausmus deliberately fabricated evidence in an investigative 5 report that accused her of money laundering “based on a speculation that in 2011 [Richter] 6 refunded $4000 that she received for tutoring,” and a bank law violation that Richter illegally 7 deposited $4000 in her safety deposit box. SAC ¶ 57. She alleges that defendant Joshi fabricated 8 evidence by including statements that “Judge Mendez stated that Officer Richter falsified 9 testimony regarding teaching her sister,” and that she assisted her brother-in-law in wrongfully 10 obtaining child tax credits. Id. ¶ 89. While Richter asserts in a conclusory manner that these 11 charges are false, she fails to allege any facts that Ausmus and Joshi “knew or should have 12 known” that she was innocent of these charges, or that she was in fact innocent of these charges. 13 Instead, Richter devotes much of her complaint to OPD’s failure to treat the charges as though 14 they were brought against her in a criminal proceeding. For example, she challenges the lack of 15 evidentiary support for such charges, id. ¶¶ 97-98, the failure to address all of the elements of 16 perjury and money laundering, id. ¶¶ 98, 105, and the staleness of the charges. Id. ¶ 113. These 17 allegations do not provide a reasonable basis to support Richter’s allegations that Ausmus and 18 Joshi knew, or even that they should have known, that the evidence in the report was false or that 19 Richter was innocent. 20 Similarly, Richter’s allegations do not adequately plead that the defendants used 21 “investigative techniques that were so coercive and abusive that they knew or should have known 22 that those techniques would yield false information.” Instead of providing any allegations with 23 regard to coercive or abusive techniques by the defendants, she appears to argue that the 24 defendants did not properly afford her certain due process protections or provide adequate 25 evidence. As I have explained in my last two orders, she was not subject to criminal charges and 26 thus cannot assert violations of certain constitutional rights. Similarly, she was not involved in a 27 civil proceeding that would implicate evidentiary and procedural requirements. She appears to 28 challenge the procedural aspects of OPD’s investigation, but she has not pleaded that her 7 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 8 of 13 1 constitutional procedural due process rights were violated in this respect. In fact, she alleges that 2 she received a Skelly hearing, which undercuts an argument that her procedural due process rights 3 were violated. See SAC ¶¶ 77, 227, 256; Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321, 4 331-32 (9th Cir. 1995) (citations omitted) (“It is well settled that the root requirement of the Due 5 Process Clause [is] that an individual be given an opportunity for a hearing before he is deprived 6 of any significant property interest,” and that plaintiff be given some kind of notice and an 7 opportunity to respond). As with Richter’s prior claim, this conduct fails to rise to the level of “shocks the 8 United States District Court Northern District of California 9 conscience” that would support a substantive due process claim based upon fabrication of 10 evidence. This cause of action is DISMISSED WITH PREJUDICE. 11 V. RIGHT TO DISABILITY RETIREMENT Defendants did not present any argument in their motion to dismiss or reply that plaintiff’s 12 13 fifth cause of action should be dismissed. Accordingly, I will not dismiss this cause of action. 14 VI. RETALIATION Richter’s sixth cause of action re-asserts her claim for retaliation for exercise of her First 15 16 amendment right. As I noted, “Section 1983 claims against a government official for First 17 Amendment retaliation require that an employee demonstrate that: (1) he or she engaged in 18 protected speech; (2) the official took adverse employment action; and (3) his or her speech was a 19 substantial or motivating factor for the adverse employment action. Order at 12 (citing Coszalter 20 v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)). I noted that Richter adequately stated an 21 adverse employment action. Id. However, I found that she had not alleged that the testimony she 22 provided was truthful, or that it was a substantial or motivating factor in defendants’ investigation. 23 Id. 24 Richter alleges that her lawsuit furnishes one basis for her retaliation. See SAC ¶ 214. 25 This argument is unpersuasive, because the conduct underpinning Richter’s lawsuit took place 26 before she filed the lawsuit. Richter also asserts that she engaged in protected speech by testifying 27 in the Eastern District of California in 2018. Id. ¶ 216. Defendants argue that this speech was not 28 a matter of public concern and therefore not protected. Mot. 7-8. “[S]peech involves a matter of 8 United States District Court Northern District of California Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 9 of 13 1 public concern when it can fairly be considered to relate to any matter of political, social, or other 2 concern to the community.” Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1069 (9th Cir. 3 2012) (citation omitted). This extends to speech in a judicial proceeding. Id. In such cases, 4 speech implicates public concern if it “exposes government wrongdoing or helps the public 5 evaluate the performance of public agencies,” or if “it contributes in some way to the resolution of 6 a judicial or administrative proceeding in which discrimination or other significant government 7 misconduct is at issue.” Id. (citations omitted). 8 Richter’s testimony in the Eastern District of California concerned whether she “was paid 9 $4000 by the criminal defendant to teach English,” whether she “did or did not refund said $4000 10 in 2011,” and also concerned her sister. SAC ¶¶ 57, 89, 216. These matters are plainly not 11 matters of public concern. For this reason, Richter cannot demonstrate that she was engaged in 12 speech protected by the First Amendment and her retaliation claim fails. Accordingly, Richter’s sixth cause of action is DISMISSED WITH PREJUDICE. 13 14 15 VII. EQUAL PROTECTION Richter’s seventh claim for relief alleges that defendants violated her due process right to 16 equal protection based on her disability. SAC ¶¶ 225-232. I previously dismissed Richter’s equal 17 protection claims because she did not allege that she was discriminated against as a member of an 18 identifiable class. Order at 9. 19 Richter’s allegations with respect to this cause of action again fail to state a claim for a 20 constitutional equal protection violation. She states that defendants “treated Plaintiff differently 21 from other citizens OPD investigated on suspicion of criminal activity.” SAC ¶ 227. She next 22 repeats her allegations with respect to fabrication of evidence and concludes that she “was denied 23 equal protection when Defendants based investigation on fabricated evidence, allegations outside 24 of jurisdiction, barred by statute of limitations and totally devoid of evidentiary support.” Id. ¶¶ 25 227-230. Further, she asserts that defendants terminated her “to deprive her of disability benefits . 26 . . and in retaliation of her exercise of the First Amendment. . .” Id. ¶ 229. These allegations do 27 not support an inference that Richter was discriminated against based upon her disability. Richter 28 asserts that she was disabled and that she was subjected to unfair treatment, but she cites no facts 9 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 10 of 13 1 to substantiate her contention that her treatment was due to her disability. To assert this cause of 2 action, she must provide facts (and not conclusory allegations) supporting a coherent theory of 3 discrimination as a result of her disability. 4 5 as I stated in my prior Order, Richter must allege that she was deprived of her rights because of 6 class-based animus. Order at 15. Because Richter fails to state a deprivation of rights due to 7 class-based animus, this cause of action fails as well. 8 9 10 11 United States District Court Northern District of California With respect to Richter’s eighth and ninth claims for relief pursuant to 42 U.S.C. § 1985, Richter’s seventh and eighth causes of action are DISMISSED WITHOUT PREJUDICE. The ninth is DISMISSED WITH PREJUDICE. VIII. STATE-LAW BASED CLAIMS Richter’s tenth claim for relief alleges a violation of her due process rights based upon 12 California Government Code § 3304, the Public Safety Officers Procedural Bill of Rights 13 (“POBOR”), because she was terminated more than one year after the termination of her 14 investigation. SAC ¶¶ 251-252. Richter’s twelfth claim for relief states a violation of POBOR 15 itself and largely mirrors her tenth claim for relief. Id. ¶¶ 268-275. Richter alleges that Ausmus 16 and Joshi informed her that the statute of limitations was tolled due to the criminal investigation 17 by the FBI. Id. ¶ 253. She asserts that she was improperly terminated based upon events that 18 occurred more than one year prior to termination. Id. ¶ 255. 19 There are several potentially fatal problems with Richter’s POBOR claims. With respect 20 to her tenth cause of action, she has failed to identify a protectable interest for purposes of a 21 procedural due process claim. See Wong v. Quen, No. C 97-0219 FMS, 1997 WL 338542, at *2 22 (N.D. Cal. June 17, 1997). As with her prior procedural due process claim, she must allege how 23 her procedural due process rights were violated in light of the fact that she acknowledges that she 24 had a Skelly hearing. 25 With respect to her POBOR claim, defendants point out that Richter cannot bring a cause 26 of action pursuant to Section 3304 because individuals are not liable for violations of POBOR. 27 Mot. 14. The plain language of the statute and at least one case supports defendants’ position. See 28 California Government Code § 3309.5(e) (“An individual shall not be liable for any act for which 10 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 11 of 13 1 a public safety department is liable under this section.”); Eaton v. Siemens, No. CIV S-07-315 2 FCDKJM, 2008 WL 4347735, at *1 (E.D. Cal. Sept. 22, 2008). Richter does not provide any 3 substantive argument in opposition. United States District Court Northern District of California 4 In addition, Richter’s cause of action is undermined by her own allegations that the statute 5 of limitations was tolled based on her criminal investigation. SAC ¶ 270. Section 3304 of the 6 Government Code states that “no punitive action, nor denial of promotion on grounds other than 7 merit, shall be undertaken for any act, omission, or other allegation of misconduct if the 8 investigation of the allegation is not completed within one year of the public agency’s discovery 9 by a person authorized to initiate an investigation of the allegation of an act, omission, or other 10 misconduct.” Cal. Gov’t Code § 3304(d)(1). Although Richter asserts that officers did not 11 provide her with “proof” of their position on tolling, the statute clearly provides that “[i]f the act, 12 omission, or other allegation of misconduct is also the subject of a criminal investigation or 13 criminal prosecution, the time during which the criminal investigation or criminal prosecution is 14 pending shall toll the one-year time period.” Id. § 3304(d)(2). And Richter’s allegation that the 15 investigation was based on stale information is not persuasive because an investigation need only 16 be concluded one year after the conduct was discovered, not one year after it occurred. Hauschild 17 v. City of Richmond, No. C 15-01556 WHA, 2016 WL 3456620, at *3 (N.D. Cal. June 24, 2016) 18 (office knew of earlier events around the time they occurred). 19 20 21 Because she cannot bring the tenth and twelfth claims for relief against individuals, these are DISMISSED WITH PREJUDICE. Richter also asserts a claim pursuant to California Labor Code § 132a, asserting that she 22 was terminated in retaliation for filing a workers’ compensation claim. SAC ¶ 265. Again, 23 defendants argue that “[u]nder the plain language of the statute, claims may only be stated against 24 the employer.” Mot. 13. Richter responds that “§132a is inapplicable since retaliation claims are 25 governed by California Labor Code §1102.5,” and defendants presented no cases that held 26 “individuals could never be liable for retaliation.” Oppo. 12. But Richter cites Section 132a in the 27 SAC, and has presented no argument that she may bring a cause of action pursuant to this statute 28 against the individual defendants. Section 132a plainly prohibits discrimination on the part of 11 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 12 of 13 1 “employers.” Cal. Lab. Code § 132a. And as defendants point out, Section 1102.5 involves 2 whistleblowers and does not apply in this case. Reply 7. Richter’s eleventh cause of action is 3 DISMISSED WITH PREJUDICE. Finally, Richter’s thirteenth claim for relief asserts a cause of action for negligent and United States District Court Northern District of California 4 5 intentional infliction of emotion distress. SAC ¶¶ 276-300. This cause of action is based upon 6 Richter’s claims of fabricated evidence, violation of her right to a fair trial, and her termination. 7 Id. Defendants contend that this cause of action is barred by California Government Code § 8 820.2. Mot. 14-15. “Under § 820.2, a public employee cannot be held liable for any injury 9 resulting from his act or omission where the act or omission was the result of the exercise of 10 discretion vested in him, whether or not such discretion be abused.” Wallis v. Spencer, 202 F.3d 11 1126, 1144 (9th Cir. 2000) (citation omitted). As discussed above, Richter has inadequately 12 pleaded that the defendants knowingly fabricated evidence, or that her right to a fair trial was 13 violated. Further, her claims arise solely from discretionary acts to investigate and terminate her. 14 Accordingly, this claim is DISMISSED WITH PREJUDICE. 15 IX. 16 MOTION TO STRIKE Richer seeks to strike defendants’ defenses raised in their motion to dismiss pursuant to 17 Rule 12(f). Oppo. 2. But Rule 12(f) attacks pleadings, such as an answer to a complaint. Richter 18 cannot challenge defendants’ motion to dismiss on this basis. Richter also argues that many of 19 defendants’ arguments are waived because they were not raised in their first motion to dismiss. Id. 20 Richter filed a new complaint, and defendants are permitted to raise new arguments in response to 21 the new complaint. 22 23 24 25 26 27 28 12 Case 3:19-cv-08300-WHO Document 47 Filed 07/21/20 Page 13 of 13 CONCLUSION 1 2 For the above reasons, defendants’ motion is GRANTED. Richter may proceed on the 3 fifth cause of action. She is granted leave to amend her seventh and eighth causes of action 4 against defendants within the next 30 days if she so chooses. 5 6 IT IS SO ORDERED. Dated: July 21, 2020 7 8 William H. Orrick United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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