3:11-cv-01427
N.D. Cal.Aug 29, 2012Background
- Turner, a former DPW employee, sues CCSF/DPW and officials alleging retaliation, due process violations, and statutory claims under California and federal law; federal removal occurred and FAC 4th amended complaint governs; court considers first motion to dismiss.
- Turner contends he was hired as temporary exempt despite qualifying for permanent civil service, worked out of class, and faced punishment for raising concerns about unlawful practices.
- Defendants allegedly used temporary exempt hires to underbid on surveying work, overcharged for mapping fees, and failed to promote Turner to permanent status; Turner was terminated after challenging these practices.
- Turner exhausted DFEH remedies and received a right-to-sue letter; he seeks damages, back pay, reinstatement, penalties, and injunctive relief.
- The court grants in part and denies in part the motion to dismiss, addressing standing, exhaustion, § 526a, § 98.6/1102.5, § 12653, § 8547, and § 1983 claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing under §526a | Turner has direct taxpayer injury from DPW spending. | Cantrell requires direct injury; no specific tax expenditure alleged. | Lacks Article III standing; §526a claim dismissed with leave to amend. |
| Exhaustion of administrative remedies | Exhaustion not strictly required; DFEH filing suffices. | §98.7 exhaustion required before Labor Code claims. | Exhaustion under §98.7 not required for §98.6/1102.5; denied as to exhaustion. |
| Civil penalties under PAG Act (§2699) | §2699.3 notice requirement fulfilled; penalties may be pursued. | Plaintiff failed to comply with §2699.3; penalties barred. | Granted without prejudice as to civil penalties under §2699; leave to amend. |
| False Claims Act retaliation (Cal. Govt. Code §12653) against individuals | Defendants engaged in a scheme causing retaliation because of protected activity. | §12653 applies to employer; individual liability uncertain; factual pleading lacking. | Dismissed with prejudice as to individual Defendants; claims may proceed against CCSF/DPW with leave to amend. |
| 42 U.S.C. §1983 due process/First Amendment against individuals and municipalities | Termination and retaliatory acts violate due process/First Amendment; Monell liability alleged. | No final policymaker authority shown; Monell fails; individual liability inadequately pled. | Monell claim against CCSF/DPW dismissed with leave to amend; §1983 claims against Wong/Moy/Urbina dismissed with leave to amend; Reiskin/Storrs survive. |
Key Cases Cited
- Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) (standing requires direct injury; Cantrell cited for Article III standing rule)
- Campbell v. Regents of Univ. of Cal., 35 Cal.4th 311 (Cal. 2005) (Campbell discusses exhaustion principles in California law)
- Creighton v. City of Livingston, 2009 WL 3246825 (E.D. Cal. 2009) (exhaustion not mandatory before Labor Code §98.7 actions; persuasive state-court reading)
- Lloyd v. County of Los Angeles, 172 Cal.App.4th 320 (Cal. App. 2009) (post-C Campbell view that §98.7 exhaustion not mandatory for Labor Code claims)
- Jenkins v. County of Riverside, 138 Cal.App.4th 593 (Cal. App. 2006) (property interest in civil service status depends on statute and appointment process)