Bielma v. Bostic
| Decision Date | 04 January 2016 |
| Docket Number | Case No.: 15cv1606-MMA (BLM) |
| Parties | JOSEPH BIELMA, FRANK URIARTE, RUDY ALARCON, LUIS CASILLAS, STEVEN GARCIA, GERMAN DURAN, GABRIEL RODRIGUEZ, ISAIAS NAVARRO, and STEPHEN FRAZIER, Plaintiffs, v. MICHAEL BOSTIC, CITY OF CALEXICO, RICHARD WARNE, GONZALO C. GERARDO, and MARITZA HURTADO, Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' AND DEFENDANTS' REQUESTS FOR JUDICIAL NOTICE;
GRANTING DEFENDANTS' MOTIONS TO DISMISS;
On July 20, 2015, Plaintiffs Joseph Bielma, Frank Uriarte, Rudy Alarcon, Luis Casillas, Steven Garcia, German Duran, Gabriel Rodriguez, Isaias Navarro, and Stephen Frazier ("Plaintiffs") filed this action against Defendants Michael Bostic, City of Calexico, Richard Warne, Gonzalo C. Gerardo, and Maritza Hurtado ("Defendants"). [Complaint ("Compl.").] Except as to Defendant City of Calexico, Plaintiffs sue Defendants individually and in their official capacities as employees of the City of Calexico. Defendants move to dismiss Plaintiffs' claims pursuant to Federal Rules of Civil Procedure1 12(b)(1) and 12(b)(6),2 and move to strike Plaintiffs' Complaint pursuant to Rule 12(f) and California Code of Civil Procedure § 425.16. [Doc. Nos. 7, 8, 9.] The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the following reasons, the Court GRANTS Defendants' motions to dismiss and DENIES Defendants' motion to strike. [Doc. Nos. 7, 8.]
Plaintiffs allege the following in their Complaint.3 Plaintiffs Uriarte, Alarcon, Casillas, Garcia, Duran, Rodriguez, Navarro, and Frazier ("Plaintiff Officers") are or were police officers employed by Defendant City of Calexico ("Defendant City") during the events alleged in the Complaint. Plaintiff Bielma is a former peace officer. Defendant Bostic was and is the chief of police for Defendant City and the Calexico Police Department. Defendant Warne was the city manager. Defendant Gerardo was and is a police lieutenant for the City and the police department. Defendant Hurtado was a City Council member for the City.
Plaintiff Officers allege they occupied either leadership roles with the Calexico Police Officer's Association ("CPOA"), or "were associated with such leadership." [Compl. ¶ 9.] Prior to November 2014, Plaintiff Officers "enjoyed a successful working relationship with the City and the majority of its officials." [Id.] They were politically active, spoke out at City Council meetings, met with city officials to discuss issues regarding the police department and the city, and "their individual and collective voice was heard." [Id.] Plaintiff Officers "[brought] to light actual corruption, mismanagement and disruption within the Department and the City." [Compl. ¶ 13.]
"In the run up to the November 2014 City Council election, the Plaintiff Officers . . . actively opposed the re-election of one City Council member, Hurtado, and opposed the election of another." [Compl. ¶ 16.] "Around this same time, Hurtado . . . began to engage in retaliatory actions." [Compl. ¶ 18.] Defendant Hurtado said to Plaintiff Officers that it was not their place to be involved in collective bargaining negotiations or political campaigns. She and other individuals said they were going to "break the union," charge the Plaintiff Officers, and have them terminated. [Id.] They accused CPOA members of being corrupt and of stealing money.
Defendant Hurtado then "employed Bielma to attend a covert meeting at the residence of a criminal suspect that . . . the Plaintiff Officers . . . had arrested." [Compl. ¶ 19.] Defendant Hurtado solicited a complaint from the individual alleging that the Plaintiff Officers, specifically the CPOA president, Plaintiff Alarcon, engaged in excessive force. The City then hired an investigator to "dig[] up dirt" on the Plaintiff Officers. [Id.] The investigator's investigation was too wide-ranging, and the Plaintiff Officers were not adequately notified of its scope and nature.
Hurtado and the other candidate that the Plaintiff Officers had opposed were elected to City Council. "By the time the November 2014 election had come around," the City had hired Defendant Warne as an interim city manager to attack the CPOA and its leadership. [Compl. ¶ 23.] He was "hand selected by Hurtado." [Id.] Defendant Warne hired Defendant Bostic to be the interim chief of police. Bostic stated that he was brought in by Hurtado and Warne to clean up the police department.
At a November 19, 2014 press conference, Defendant Bostic stated that some council members, members of the CPOA, and members of the police department, have been running an "extortion racket." [Compl. ¶ 26.] He stated that some members of the prior investigation unit of the police department spent thousands of dollars on surveillance equipment. When questioned, the investigations unit reported to Bostic that they had no current investigations. He stated, "[w]e are cleaning this mess from former Chief and former staff." [Compl. ¶ 28.] Plaintiffs allege these statements are false.
Between December 2014 and July 2015, Plaintiffs Uriarte, Alarcon, Casillas, Garcia, Duran, Rodriguez, and Frazier ("Terminated Plaintiffs") were each fired for "innocuous, petty mistakes" that "do not justify termination." [Compl. ¶ 35.] The Complaint also states that the excessive force allegation served as the basis for the "alleged termination of various of the Plaintiff Officers." [Compl. ¶ 19.]
In July 2015, Plaintiff Bielma "blew the whistle to the Department of Justice by making a written complaint of corruption by Bostic and Warne." [Compl. ¶ 37.] Plaintiff Bielma's letter describes how Defendants Bostic and Gerardo recommended that an officer named Acuna become the president of the CPOA. They indicated that "it could benefit him" and that they would "take care of him." [Compl. ¶¶ 38, 39.]
The letter also states that Defendants Bostic and Gerardo intimidated and coerced Acuna to lie regarding the excessive use of force charges against Plaintiff Alarcon. "Bostic and Gerardo believed Acuna was not truthful during his investigation." [Compl. ¶ 41.] "As a result, Bostic and Gerardo believed they had to terminate Acuna." [Id.] Otherwise, the other Terminated Plaintiffs could show disparate treatment because they had been or were going to be terminated, and the excessive force allegations made against the Terminated Plaintiffs were similar to those made against Acuna.
Defendants Bostic and Gerardo conspired to fire Acuna, tell Acuna to request a Skelly hearing4 before Defendant Bostic, and have Acuna lie during it. Acuna was to say he was not truthful in his investigation because he was intimidated "by the prior police administration and the Plaintiff Officers." [Compl. ¶ 41.] He was also supposed to say that he saw Plaintiff Alarcon use excessive force. Defendants Bostic and Gerardo told Acuna that doing so would save his job. "This past week, the allegations in Bielma'scomplaint came to happen." [Compl. ¶ 45.] Acuna was served with termination papers and he requested a Skelly hearing.
The Terminated Plaintiffs have been fired. Plaintiff Navarro has been subjected to a retaliatory investigation. Defendants Gerardo and Bostic have harassed and intimidated Plaintiff Bielma by threatening to prosecute him. Defendants Gerardo and Bostic threatened Plaintiff Bielma in order to keep him from disclosing the information in the Department of Justice complaint.
Lastly, Plaintiff Officers allege they have all worked over forty hours per week and have not been compensated adequately. Plaintiff Officers allege "the CPOA agreed to a collective bargaining agreement in 2013 or 2014 that mandated pay raises." [Compl. ¶ 71.] Defendants Warne and Bostic "stated that they would not pay the officers at the appropriate rate and that they didn't care about the agreement." [Id.]
On July 20, 2015, Plaintiffs filed this action against Defendants. Plaintiffs organize their claims into five counts: (1) retaliation pursuant to 42 U.S.C. § 1983;5 (2) "union busting and retaliation" pursuant to California Government Code §§ 3300 et seq., 3502, 3506, and California Labor Code § 1102.5; (3) defamation and false light; (4) Fair Labor Standards Act ("FLSA") violations pursuant to 29 U.S.C. §§ 207 et seq.; and (5) "witness tampering (conspiracy to intimidate officers)" pursuant to 42 U.S.C. 1985(1)-(3), California Penal Code §§ 136.1, 137-40, 18 U.S.C. §§ 201(c)(2), 1512.
Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003); see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Ripeness is an issue of a court's subject matter jurisdiction and is properly attacked under Rule 12(b)(1). See RayCharles Foundation v. Robinson, 795 F.3d 1109, 1116 (9th Cir. 2015). The ripeness doctrine is meant to prevent premature adjudication of issues that do not rise to the level of a case or controversy. See Thomas v. Union Carbide Agricultural Prod. Co., 473 U.S. 568, 580 (1985). Ripeness "is peculiarly a question of timing, designed to separate matters that are premature for review because the injury is speculative and may never occur from those cases that are appropriate for federal court action." Wolfson v. Brammer, 616 F.3d 1045, 1057 (9th Cir. 2010) (). "Because ripeness is peculiarly a question of timing, we look at the facts as they exist today in evaluating whether the controversy before us is sufficiently concrete." Assiniboine and Sioux Tribes v. Bd. of Oil and Gas, 792 F.2d 782, 788 (9th Cir. 1986) (internal quotations omitted).
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