Creighton v. City of Livingston

• Decision Date: 19 May 2009
• Docket Number: No. 1:08-CV-01507-OWW-SMS.,1:08-CV-01507-OWW-SMS.
• Citation: 628 F.Supp.2d 1199
• Court: U.S. District Court — Eastern District of California
• Parties: Paul CREIGHTON, an individual, Plaintiff, v. CITY OF LIVINGSTON, a California Municipal Corporation, Richard Warne, an individual and in his official capacity, and Does 1-20, inclusive, Defendants.

628 F.Supp.2d 1199

Paul CREIGHTON, an individual, Plaintiff, v. CITY OF LIVINGSTON, a California Municipal Corporation, Richard Warne, an individual and in his official capacity, and Does 1-20, inclusive, Defendants.

No. 1:08-CV-01507-OWW-SMS.

United States District Court, E.D. California.

May 19, 2009.

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Donald Carl Potter, Law Office of Donald Potter, Pasadena, CA, for Plaintiff.

Jesse Jeremy Maddox, Shelline K. Bennett, Liebert Cassidy Whitmore, Fresno, CA, for Defendants.

MEMORANDUM DECISION AND ORDER ON DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DOC. 10)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

Plaintiff Paul Creighton ("Creighton") filed suit against his former employer, the City of Livingston, and former supervisor, Richard Warne (collectively "Defendants"), on September 2, 2008 in the Superior Court of California, County of Merced. On October 6, 2008, Defendants removed the action to this court based on federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1441, and 1446. (Doc. 1, attaching Plaintiff's complaint as exhibit "A" and Defendants' answer as exhibit "B".)

Plaintiff alleges violations of his First and Fourteenth Amendment rights under 42 U.S.C. § 1983. Plaintiff also asserts supplemental claims, including violation of article I, §§ 2 and 3 of the California Constitution, various California Labor Code violations, and wrongful termination in violation of public policy. (Doc. 1, Exhibit A at 12-17.)

Before the court for decision is Defendants' motion for partial judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), or alternatively, to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).¹ (Doc. 10, filed Dec. 9, 2008.)

Defendants challenge the § 1983 claim by asserting that: (1) Plaintiff's Monell claim fails because he does not allege that a policy, custom, or practice of the City of Livingston caused his constitutional injury, and (2) Richard Warne, the City Manager, is entitled to qualified immunity because a) Plaintiff's speech is not entitled to constitutional protection as it was made pursuant to his professional responsibilities, and b) the right at issue was not clearly established at the time of the alleged violation. As to the California claims, Defendants argue that: (1) no private right of action for damages exists under the California Constitution; (2) Plaintiff has failed to allege administrative exhaustion with the California Labor Commissioner as required under California Labor Code § 98.6 and § 1102.5; (3) California Labor Code § 6310 does not apply to the facts of this case; and (4) California's Tort Claims Act bars Plaintiff's wrongful termination in violation of public policy claim.

II. BACKGROUND

Plaintiff served as Defendant City of Livingston's (the "City" or "Livingston") Public Works Director from June 2004 to June 6, 2008. (Compl. ¶ 5-6.) In conjunction with his duties as Public Works Director, Plaintiff served as Acting City Manager from the start of his employment to May 2005. (Compl. ¶¶ 7-8.) Plaintiff alleges that his employment record was "discipline-free" and reflected "favorable performance evaluations and merit increases." (Compl. ¶ 9.)

Plaintiff alleges that around late 2005 or early 2006, Defendant Richard Warne ("Warne") became Livingston's City Manager. (Compl. ¶ 10.) As City Manager, Warne managed City funds and department budgets. (Id.) During Warne's tenure, the City was involved in the Proposition 13 Water Line Replacement Project, a publicly-funded project. (Compl. ¶ 12.) While managing this project, Plaintiff contends that Warne pressured him to "approve multiple change orders that appeared to benefit current and former City officials and/or persons linked to them." (Id.) Plaintiff questioned Warne's motives and the need for the change orders, explaining to Warne that the orders would adversely affect the budget. (Id.) Still, Warne took steps to have the change orders approved. (Id.)

Among Warne's responsibilities as City Manager was management of Livingston's Water Enterprise Fund ("WEF"), which is used to operate and maintain the City's water system. (Compl. ¶ 10.) Plaintiff had previously managed the WEF as Acting City Manager. (Compl. ¶ 11.) Plaintiff alleges that under Warne's management the WEF "was being depleted and that there appeared to be accounting discrepancies and inexplicable shifting monetary allocations." (Id.) When Plaintiff brought his concerns to Warne's attention Plaintiff contends that Warne instructed him to "disregard those matters." (Id.)

To replenish the depleted water funds and ensure the City's ability to safely manage its water supply, Plaintiff asserts that a water rate study was needed to commence the process to approve and secure rate increases. (Compl. ¶ 13.) Warne hired an outside consultant to prepare the initial water rate study, which was completed in 2006. (Compl. ¶ 14.) Plaintiff contends the study was "forced to undergo significant changes," delaying completion of the study until early 2008. (Id.) Plaintiff alleges that while the water rate study was being conducted, Plaintiff informed Warne on multiple occasions that the study needed to be submitted to the public and Livingston's City Council for approval. (Compl. ¶ 15.) Plaintiff contends that his "pleas" were ignored because Warne wanted to submit the water rate study after Livingston's City Council elections in November 2008. (Id.)

In January 2008, Plaintiff discovered that one of the City's water wells was polluted with Coliform bacteria. (Compl. ¶ 16.) This posed potential health problems for Livingston residents and users of the City water supply. (Compl. ¶ 17.) Plaintiff shut down the polluted well, temporarily controlling the problem. (Compl. ¶ 16.) Plaintiff contends that he was able to shut down the well because the contamination occurred in January, which is not peak water use season. (Compl. ¶ 16.) However, if the problem arose during peak water use season, the well could not be shut down because the City would face dangerously low water pressure, backflow issues, and other public health risks. (Compl. ¶ 17.) Plaintiff determined that the public health risks posed by the polluted well could be ameliorated by drilling a new well on an emergency basis. (Id.) However, the City's shortage of funds and the delay in obtaining additional funds caused by Warne's withholding of the water rate study put Plaintiff's plan for a new well on hold. (Id.)

Plaintiff continued to request that Warne submit the study for approval due to the public health and safety risks. (Compl. ¶ 18.) Warne continued to refuse, telling Creighton that the study would not be submitted until local elections occurred and that he should not concern himself with the study. (Id.) In May 2008, which is peak water season, the polluted water well again tested positive for Coliform bacteria. (Compl. ¶ 19.) Plaintiff informed Warne about the positive test results, telling him about the potential need for a well shut-down and the associated health risks. (Compl. ¶ 20.) Plaintiff believed serious health problems would result if the polluted well was shut down without first adding a new well. (Compl. ¶ 19.) Warne became angry and warned Plaintiff to keep quiet about the situation. (Compl. ¶ 20.) Plaintiff contends that Warne again refused to submit the water rate study until after local elections despite knowing about the polluted well. (Compl. ¶ 18.) Plaintiff was unable to shut down the well because it was now peak water season. (Compl. ¶ 19.)

Plaintiff believed that Warne "was ignoring, and exacerbating, a serious potential health hazard." (Compl. ¶ 21.) Acting on this belief, Plaintiff raised the issues of the polluted well problem, the health risks it posed, and Warne's plan to delay submission of the water rate study with the City's Mayor Pro Tem and Councilmember William Ingram and Councilmember Rodrigo Espinoza. (Id.) Plaintiff alleges that these discussions "occurred at non-Livingston owned property, during off-duty time and were not part of [Plaintiff's] Public Works Director duties." (Id.) Plaintiff also alleges that Warne learned of these discussions, summoned Plaintiff to his office without prior notice, and fired Plaintiff without any explanation. (Compl. ¶ 23.) When Plaintiff asked for a reason, Warne said he was "taking the City in a different direction." (Id.)

III. STANDARD OF DECISION

A motion for judgment on the pleadings, pursuant to Federal Rules of Civil Procedure Rule 12(c), challenges the legal sufficiency of the opposing party's pleadings after the pleadings are closed. Judgment on the pleadings is appropriate when, taking all of the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law. Honey v. Distelrath, 195 F.3d 531, 532 (9th Cir.1999) (citing Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir.1998)). The court must assume the truthfulness of the material facts alleged in the complaint. All inferences reasonably drawn from these facts must be construed in favor of the responding party. Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993). In addition, all allegations of fact by the party opposing the motion are accepted as true, and are construed in the light most favorable to that party. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988). Where the allegations of the moving party have been denied by the non-moving party, those allegations are assumed to be false. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1990) (citing Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir.1984)). If matters outside of the pleadings are considered by the court on a motion...