Ingersoll v. City of Del Rey Oaks et al, No. 5:2019cv01164 - Document 30 (N.D. Cal. 2019)
Court Description: ORDER GRANTING DEFENDANTS' MOTION TO DISMISS. Re: Dkt. No. 24 . If Ingersoll wishes to amend, he must file his amended complaint by 9/16/2019. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/14/2019)
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Ingersoll v. City of Del Rey Oaks et al Doc. 30 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 ROBERT INGERSOLL, 11 United States District Court Northern District of California Plaintiff, 12 v. 13 CITY OF DEL REY OAKS, et al., 14 Case No. 19-cv-01164-NC ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Re: Dkt. No. 24 Defendants. 15 16 Defendants City of Del Rey Oaks and Dino Pick move to dismiss plaintiff Robert 17 18 Ingersoll’s first amended complaint alleging that Defendants violated his constitutional 19 rights when they fired him from his position as a police officer. See Dkt. No. 24. 20 Although Ingersoll’s amendments cured some deficiencies in his original complaint, he 21 still fails to state a claim. Accordingly, the Court GRANTS Defendants’ motion to 22 dismiss. 23 I. 24 Background A. Allegations in First Amended Complaint 25 Ingersoll was employed as a police officer in Seaside, California until 1992, when 26 he was convicted of a federal misdemeanor. See Dkt. No. 23 (“FAC”) ¶¶ 10–11. Twelve 27 years later, then-Chief of Police and acting city manager for Del Rey Oaks, Ron Langford, 28 invited Ingersoll to apply to be a police officer with the Del Rey Oaks Police Department Dockets.Justia.com 1 knowing that Ingersoll had previously been convicted of a federal misdemeanor. Id. ¶¶ 12, 2 13. Ingersoll disclosed his misdemeanor conviction on his application materials and was 3 ultimately hired as a reserve police officer. Id. ¶¶ 14, 16. In 2013, Langford promoted 4 Ingersoll to a regular police officer. Id. ¶ 17. Three years later, Ingersoll was again 5 promoted to the rank of Sergeant. Id. ¶ 18. Langford retired in 2017. Id. ¶¶ 19–20. 6 On April 12, 2017, Ingersoll was put on paid administrative leave pending an 7 investigation by the acting Chief of Police. Id. ¶ 19. In October, Del Rey Oaks notified 8 Ingersoll that it was investigating him for workplace misconduct. Id. ¶ 20. As part of that 9 investigation, Del Rey Oaks interviewed Ingersoll in December. Id. ¶ 21. Langford was 10 not interviewed as part of the investigation. Id. ¶ 22. On February 12, 2018, the new Chief of Police, J. Hoyne, recommended that Del United States District Court Northern District of California 11 12 Rey Oaks fire Ingersoll as a result of the investigation. Id. ¶ 23. In particular, Hoyne 13 recommended termination because Ingersoll (1) made false and misleading statements on 14 his application materials; (2) made false and misleading statements during the 15 investigation; and (3) used discriminatory language while on- and off-duty. See Dkt. No. 16 24-1.1 The next day, Pick sent Ingersoll a letter notifying him that Del Rey Oaks intended 17 to fire him. Id. ¶ 24; see also Dkt. No. 24-2. Ingersoll was afforded an administrative hearing regarding his termination on 18 19 February 23, 2018. See FAC ¶ 29. He was fired on March 1, 2018. Id. According to 20 Ingersoll, his termination was demanded by an unnamed councilman who wanted to 21 remove all city employees who were loyal to Langford. Id. ¶ 28. 22 B. On May 31, 2019, the Court granted Defendants’ motion to dismiss Ingersoll’s 23 24 Procedural History original complaint. See Dkt. No. 21. In that order, the Court noted that Ingersoll failed to 25 26 27 28 Defendants request judicial notice of two exhibits: Hoyne’s memorandum recommending Ingersoll’s termination and the notice of Del Rey Oaks’ intent to fire Ingersoll. See Dkt. No. 24-3. The Court previously took judicial notice of these exhibits. See Dkt. No. 21 at 2 n.2. Because Ingersoll’s first amended complaint “necessarily relies” on these documents and he does not contest their authenticity, the Court again GRANTS Defendants’ request for judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). 2 1 1 allege sufficient facts to support his Monell claim under 42 U.S.C. § 1983 or his state-law 2 breach of the covenant of good faith and fair dealing claim. Id. The Court granted leave to 3 amend. Id. Ingersoll amended his complaint on June 14, 2019. See Dkt. No. 23. Defendants 4 5 now move to dismiss, and the motion is fully briefed. See Dkt. Nos. 24, 27, 28. All parties 6 have consented to the jurisdiction of a magistrate judge. See Dkt. Nos. 7, 13. 7 II. Legal Standard A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal United States District Court Northern District of California 8 9 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a 10 motion to dismiss, all allegations of material fact are taken as true and construed in the 11 light most favorable to the non-movant. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337– 12 38 (9th Cir. 1996). The Court, however, need not accept as true “allegations that are 13 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 14 Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need 15 not allege detailed factual allegations, it must contain sufficient factual matter, accepted as 16 true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 17 550 U.S. 544, 570 (2007). A claim is facially plausible when it “allows the court to draw 18 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 19 v. Iqbal, 556 U.S. 662, 678 (2009). If a court grants a motion to dismiss, leave to amend should be granted unless the 20 21 pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 22 F.3d 1122, 1127 (9th Cir. 2000); see also Fed. R. Civ. P. 15(a) (“The court should freely 23 give leave [to amend] when justice so requires.”). 24 III. Discussion 25 A. § 1983 Claim 26 In a § 1983 action, a municipality is liable where the alleged action implements a 27 municipal policy or custom in violation of constitutional rights. Monell v. Dep’t of Soc. 28 Servs. of the City of N.Y., 436 U.S. 658, 690 (1978). “Under Monell, municipalities are 3 1 subject to damages under § 1983 in three situations: when the plaintiff was injured 2 pursuant to an expressly adopted official policy, a long-standing practice or custom, or the 3 decision of a final policymaker.” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th 4 Cir. 2013) (quotations omitted). In the Court’s prior order, the Court held that Pick was a final policymaker for 5 6 Monell purposes. See Dkt. No. 21 at 5. Thus, Ingersoll has stated a claim under Monell if 7 there is an underlying constitutional violation. See Monell, 436 U.S. at 690. Ingersoll 8 alleges two constitutional violations: due process under the Fifth and Fourteenth 9 Amendments, and First Amendment retaliation. See FAC ¶ 32. The Court addresses each 10 separately below. United States District Court Northern District of California 11 1. Procedural Due Process Ingersoll concedes that Defendants afforded him some process in the form of an 12 13 administrative hearing but alleges that the process was not meaningful and violated his due 14 process rights. See id. ¶ 29. In particular, Ingersoll alleges that the charges levied against 15 him were unduly vague and the administrative statute of limitations had expired on those 16 charges. See id. ¶ 25. As recounted above, Ingersoll was charged with (1) making false 17 and misleading statements on his application materials; (2) making false and misleading 18 statements during the investigation; and (3) using discriminatory language while on- and 19 off-duty. See Dkt. No. 24-1. Ingersoll’s first amended complaint clarified his allegations of vagueness as to the 20 21 charge that he lied on his application materials. According to Ingersoll, the statute of 22 limitations under the Police Officer Bill of Rights (“POBOR”), Cal. Gov’t Code §§ 3300 et 23 seq., had run because Langford was aware of his federal misdemeanor conviction, 24 reviewed his application, and hired him anyways. 2 See FAC ¶¶ 11–16. 25 26 27 28 2 In reply, Defendants argue that § 3304(d)(2)(C) applies to toll the POBOR statute of limitations here. See Dkt. No. 28 at 7. That statute permits a “reasonable extension” of the limitations period “for coordination of the involved agencies” in a “multijurisdictional investigation.” Cal. Gov’t Code § 3304(d)(2)(C) (emphasis added). Given that Ingersoll submitted his application in 2004, the Court doubts that § 3304(d)(2)(C) is particularly apt. Nonetheless, Ingersoll’s due process claim still fails for the reasons described below. 4 United States District Court Northern District of California 1 These new factual allegations, however, are still insufficient to save Ingersoll’s due 2 process claim in its entirety. Ingersoll was also accused of using discriminatory language 3 and racial epithets on- and off-duty. See Dkt. No. 24-2 at 5–6. Although some accusations 4 in Defendants’ notice to Ingersoll were vague, others were not. See Cooper v. Bd. of Med. 5 Exam’r, 49 Cal. App. 3d 931, 942 (1975) (“[T]he liberal rules of administrative pleading 6 require only that the respondent licensee be informed of the substance of the charge and 7 afforded the basic, appropriate elements of procedural due process.”); see also Pac. Gas & 8 Elec. Co. v. Pub. Utilities Comm’n, 237 Cal. App. 4th 812, 859–63 (2015). For example, 9 the notice accused Ingersoll of using racial epithets at a “recent Christmas party” in 10 December 2016. Id. at 6; see also Dkt. No. 24-1 at 3. The notice also accused Ingersoll of 11 having threatened an individual named Griswold—an accusation Ingersoll apparently 12 admitted. See Dkt. No. 24-2 at 6. And finally, the notice also accused Ingersoll of making 13 false statements during the administrative investigation, which took place in 2017. See 14 FAC ¶¶ 19–21; see also Dkt. No. 24-2 at 6. 15 Likewise, Ingersoll has not alleged any new facts—aside from his allegations 16 regarding Langford—that suggests the racial language and false statements accusations 17 were barred by the statute of limitations under Cal. Gov’t Code § 3304(d)(1). As the Court 18 explained in its prior order, Ingersoll must allege facts suggesting that Pick or some other 19 person authorized to initiate an investigation discovered the underlying misconduct prior to 20 placing him on administrative leave. See Dkt. No. 21 at 7. He has not done so. 21 22 23 24 Accordingly, Ingersoll fails to state a § 1983 claim on a Fifth and Fourteenth Amendment due process theory. 2. First Amendment Retaliation Ingersoll also argues that Defendants’ actions violated his First Amendment right of 25 political association. According to Ingersoll, some unnamed city councilman wanted to 26 remove all city employees who were loyal to Langford. See FAC ¶ 28. Ingersoll relies 27 solely on Heffernan v. City of Paterson, 578 U.S. ___, 136 S. Ct. 1412 (2016). See Dkt. 28 No. 27 at 5–8. 5 1 2 prohibits a government employer from discharging or demoting an employee because the 3 employee supports a particular political candidate.” Heffernan, 136 S. Ct. at 1417. Even 4 when the employee did not in fact engage in protected political activity, the employer may 5 still be liable under § 1983. Id. at 1416, 1418. Thus, “[w]hen an employer demotes an 6 employee out of a desire to prevent the employee from engaging in political activity that 7 the First Amendment protects, the employee is entitled to challenge that unlawful action 8 under the First Amendment and 42 U.S.C. §1983—even if . . . the employer makes a 9 factual mistake about the employee’s behavior.” Id. at 1418. 10 United States District Court Northern District of California In Heffernan, the Supreme Court explained that “the Constitution [generally] Heffernan suggests that Ingersoll does not need to allege that he was actually 11 engaged in protected political activity. See id. But Ingersoll must still allege some facts 12 that “plausibly suggest (not merely consistent with)” an improper motive to prevent him 13 from engaging in protected political activity. Twombly, 550 U.S. at 557. Thus, at a 14 minimum, Ingersoll must allege facts that plausibly suggests that Defendants thought he 15 was engaging in political activity. In Heffernan, for example, a police officer was seen 16 picking up a campaign sign for his bedridden mother. Heffernan, 136 S. Ct. at 1416. The 17 officer was fired after being accused of “overt involvement” with the campaign. Id. But 18 here, the sole allegation relating to Ingersoll’s First Amendment retaliation claim is that: 19 On information and belief, the decision to remove Mr. Ingersoll was 20 demanded by a now former city councilman who was attempting to remove 21 all persons from city employment perceived to have been loyal to the former 22 Chief of Police, Langford, such as Mr. Ingersoll. 23 FAC ¶ 28. This single, conclusory allegation fails to drag Ingersoll’s claim over “the line 24 between possibility and plausibility.” Twombly, 550 U.S. at 557. 25 Accordingly, the Court GRANTS Defendants’ motion to dismiss Ingersoll’s § 1983 26 claim. Because Ingersoll has made some progress in refining his claims, the Court will 27 grant leave to amend. If, however, Ingersoll is still unable to state a claim on his second 28 amended complaint, further dismissal will be without leave to amend. 6 1 2 Breach of the Covenant of Good Faith and Fair Dealing Cal. Gov’t Code § 905 requires presentation of “all claims for money or damages 3 against local public entities” prior to the start of litigation. Cal Gov’t Code § 905; see also 4 City of Stockton v. Super. Ct., 42 Cal. 4th 730, 734 (2007). Contract claims fall under this 5 requirement. Stockton, 42 Cal. 4th at 738 (finding that “[c]ontract claims fall within the 6 plain meaning of the requirement that ‘all claims for money or damages’ be presented to a 7 local public entity”). “It is well-settled that claims statutes must be satisfied even in face 8 of the public entity’s actual knowledge of the circumstances surrounding the claim.” Id. 9 (quoting State of Cal. v. Super. Ct. (Bodde), 32 Cal. 4th 1234, 1239 (2004)). 10 United States District Court Northern District of California B. In its prior order, the Court dismissed Ingersoll’s breach of the covenant of good 11 faith and fair dealing claim because he failed to allege that he satisfied § 905’s claim 12 presentment requirements. See Dkt. No. 21 at 8–9. Ingersoll has not fixed that deficiency. 13 In his first amended complaint, Ingersoll attached a letter purporting to present a 14 timely claim. See FAC, Ex. A. That letter, however, contains no allegations relating to his 15 breach of the covenant of good faith and fair dealing claim, or any other contract-related 16 claim. See id. To satisfy § 905, claims presented to public entities must include “[a] 17 general description of the indebtedness, obligation, injury, damage or loss incurred.” Cal. 18 Gov’t Code § 910(d). And “[n]o suit for money or damages may be brought against a 19 public entity on a cause of action for which a claim is required to be presented” until a 20 claim has been brought and denied. Stockton, 42 Cal. 4th at 738 (quoting Cal. Gov’t Code 21 § 945.4). Because the claim presented by Ingersoll to Del Rey Oaks simply did not make 22 any mention of a contract or the covenant of good faith and fair dealing, he fails to state a 23 claim. See Turner v. Cal., 232 Cal. App. 3d 883, 890–91 (1991) (claim not presented 24 when “new allegations constitute a complete shift in theory from what the defendants are 25 alleged to have done to cause plaintiff's injuries”). 26 Ingersoll’s reliance on Phillips v. Desert Hospital District, 49 Cal. 3d 699 (1989) is 27 misplaced. In Phillips, the California Supreme Court considered whether a notice under 28 Cal. Code Civ. Proc. § 364 constitutes a presented claim under Cal. Gov’t Code § 905. Id. 7 1 at 708–11. The court also considered whether such notices trigger the counter-notice and 2 defense waiver provisions under Cal. Gov’t Code §§ 910.8, 911, and 911.3. Id. at 706–08. 3 None of those provisions are applicable here. United States District Court Northern District of California 4 In any case, a claim for breach of the covenant of good faith and fair dealing 5 “depends upon the existence of a valid contract.” Stanley v. Univ. of S. Cal., 178 F.3d 6 1069, 1079 (9th Cir. 1999) (citing Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. 7 App. 3d 1371, 1392 (1990)). And “[i]n California, the terms and conditions of public 8 employment are determined by law, not contract.” Hill v. City of Long Beach, 33 Cal. 9 App. 4th 1684, 1690 (1995). Ingersoll has not alleged the existence of a valid contract that 10 controls the terms of his employment as a police officer. Thus, he cannot state a claim for 11 breach of the covenant of good faith and fair dealing. 12 Because Ingersoll’s factual pleadings contradict his claim, the Court GRANTS 13 Defendants’ motion to dismiss his claim for breach of the covenant of good faith and fair 14 dealing without leave to amend. 15 IV. Conclusion 16 The Court GRANTS Defendants’ motion to dismiss. Ingersoll’s claim under 42 17 U.S.C. § 1983 is dismissed with leave to amend. Ingersoll’s claim for breach of the 18 covenant of good faith and fair dealing is dismissed without leave to amend. If Ingersoll 19 chooses to amend, he must file his amended complaint by September 16, 2019. The 20 amended complaint must cure the deficiencies noted in this order or further dismissal will 21 be without leave to amend. Ingersoll may not add new parties or claims without further 22 leave of the Court. 23 IT IS SO ORDERED. 24 25 26 Dated: August 14, 2019 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 27 28 8
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