Eng v. County of Los Angeles

• Decision Date: 24 August 2010
• Docket Number: Case No. CV 05-2686 ODW (SSx)
• Citation: 737 F.Supp.2d 1078
• Parties: David ENG, Plaintiff, v. COUNTY OF LOS ANGELES, et al., Defendants.
• Court: U.S. District Court — Central District of California

737 F.Supp.2d 1078

David ENG, Plaintiff,

v.COUNTY OF LOS ANGELES, et al., Defendants.

Case No. CV 05-2686 ODW (SSx).

United States District Court,

C.D. California,

Western Division.

Aug. 24, 2010.

D. Jay Ritt, Joel A. Thvedt, Tiffany Wen Tai, Bensinger Ritt Tai and Thvedt, Pasadena, CA, for Plaintiff.

Cheryl W. Hsu, Franscell Strickland Roberts and Lawrence, John J. Manier, Linda C. Miller Savitt, Ballard Rosenberg Golper and Savitt LLP, Glendale, CA, for Defendants.

ORDER GRANTING CURTIS HAZELL'S MOTION FOR SUMMARY JUDGMENT AS TO FIRST AND THIRD CAUSES OF ACTION [179]; DENYING COOLEY, SOWDERS, AND LIVESAY'S MOTION FOR SUMMARY JUDGMENT AS TO REMAINING CLAIMS SET FORTH IN THE THIRD AMENDED COMPLAINT [200]; GRANTING LOS ANGELES COUNTY'S MOTION FOR SUMMARY JUDGMENT AS TO REMAINING CLAIMS SET FORTH IN THE THIRD AMENDED COMPLAINT [197]

OTIS D. WRIGHT, II, District Judge.

I. INTRODUCTION

Currently before the Court are Defendants Curtis Hazell ("Hazell"), Steve Cooley ("Cooley"), Steven Sowders ("Sowders"), Curt Livesay ("Livesay"), and Los Angeles County's ("County") (collectively, "Defendants") various Motions for Summary Judgment ("MSJs"). (Dkt. # s 179, 197, 200.) After careful consideration of the briefing and evidence submitted in support of and in opposition to each of these Motions, the record in this case, and the arguments offered by the parties at the August 23, 2010 hearing on these matters, the Court rules on each of Defendants' Motions as follows.

II. UNDISPUTED FACTS AND PROCEDURAL HISTORY¹

Plaintiff David Eng ("Plaintiff" or "Eng") has been employed by the County as a Deputy District Attorney ("DDA") in the District Attorney's Office ("DAO") since July 1984, and has been a Level IIIDDA ("DDA III") since 1989. The DAO is one of 37 County departments, and since his swearing-in on December 4, 2000, has been headed by District Attorney ("DA") Cooley. Hazell, a long-time friend of Cooley's, has been a prosecutor in the DAO since 1976. Livesay was employed by the DAO on and off between 1965 and 2006, and from 2000-May 2001 and 2002-2006, was Chief Deputy DA, reporting directly to Cooley. Sowders, first employed by the DAO in 1973, served as Head Deputy of Employee Relations from 1993 to 2003, and reported directly to the Chief Deputy DA. In April 2003, Sowders became Head Deputy of Central Trials, and then assumed his current position as Head Deputy of Auto Insurance Fraud.

At all times, Eng's employment has been governed by Civil Service Rules ("CSRs") adopted by the County's Board of Supervisors, and enforced by the Civil Service Commission ("CSC"). One of the purposes of the CSRs is to "assure all employees in the classified service of fair and impartial treatment at all times subject to Merit System Standards and appeal rights." ² Thus, the County exercises the "exclusive right to determine the mission of each of its departments ... the assignment of work ... transfer and reassignment of employees ... to promote or demote employees ... to discipline and discharge employees, and to determine the methods, means and personnel by which the [C]ounty's operations are to be conducted." ³

During his 2000 election campaign in which he defeated incumbent Gil Garcetti ("Garcetti"), Cooley suggested that there was a significant likelihood that fraud and environmental crimes had been committed in connection with the Los Angeles Unified School District's ("LAUSD") planning and construction of the Belmont Learning Complex ("Belmont Project"), and that a thorough investigation was required. Consequently, from early 2001 until April 2002, Eng was assigned to the Belmont Task Force ("Task Force") that Cooley established to carry out that investigation. The Task Force was originally organized as a separate entity within the DAO and headed by retired prosecutor Patchett, who repeatedly articulated his view that crimes had in fact been committed. Neither Livesay nor Sowders ever participated in the Task Force or attended its meetings. In August 2001, the Task Force was brought under the control of the DAO's Target Crimes Division, and Head Deputy of Target Crimes John Zajec ("Zajec") took over its supervision. Zajec reported to then Director of Specialized ProsecutionsHazell, who answered to Assistant DA of Special Operations Peter Bozanich ("Bozanich").

On July 16, 2001, the Task Force presented to Cooley and his Executive Staff its findings and recommendations regarding the filing of criminal charges. (Eng's 2007 Separate Statement of Genuine Issues Precluding Summary Judgment "2007 SSGI" ¶ 50.) Against Pachett's wishes and recommendations, Plaintiff and his colleague, advised that no criminal charges associated with the project were warranted. (2007 SSGI ¶ 59, 60.) Plaintiff states that both Cooley and Hazell were "surprised" by the presentation, and that Hazell asked: "Damn, what's going on here?" (2007 SSGI ¶ 72.) Nevertheless, Cooley and the Executive Staff unanimously rejected Patchett's recommendation and concluded that no criminal charges should be filed. (2007 SSGI ¶ 73.)

At that meeting, the Task Force also discussed a newspaper article that reported that the Certificates of Participation ("COPs") that the LAUSD had used to finance the purchase of the Belmont property were being cancelled, and that the LAUSD would have to refinance that amount at a much higher interest rate. According to Plaintiff, the COPs were cancelled because Patchett leaked to the Internal Revenue Service ("IRS") that the LAUSD had used fraudulent COPs. Plaintiff claimed, and purported communicated to Cooley, that the COPs were legal and that reporting otherwise to the IRS was wrong and should be rectified. Cooley allegedly became angry and told Plaintiff to "shut up." (2007 SSGI ¶ 66.)

In Fall 2001, Eng began a romantic relationship with Task Force law clerk Adela Ploscar ("Ploscar"). In December 2001, their relationship ended and Ploscar went to Patchett and filed what was later deemed to be a false sexual harassment complaint against Eng.⁴ Cooley learned of Ploscar's sexual harassment claim from Pachett, and instructed Patchett that he had an affirmative duty to report the claim. After that, Cooley had no further involvement in the matter. On December 6, 2001, Zajec informed Eng that he was under investigation (overseen by the DAO's Employee Relations Division) ⁵ for the sexual harassment of Ploscar, and was to have no further contact with her. Consequently, Eng worked from home from that point until January 2002.

In April 2002, Zajec told Hazell that Eng's written analysis of environmental issues was untimely and included portions lifted from a report prepared by Garcetti's administration, and recommended that Eng's Task Force duties be reassigned.⁶ Hazell communicated theseconcerns to Bozanich, who directed Hazell to find a new assignment for Eng. On April 1, 2002, pursuant to Hazell's determination that the DAO's Juvenile-North Division branch office in Pomona "was in particular need of a DDA III prosecutor," Eng was notified of his reassignment. While Eng did not experience any reduction in compensation or benefits as a result of the reassignment, he contends that a reassignment to any juvenile position after one's initial "stint" as a new DDA should be considered a "clear demotion." (See TAC ¶ 59; 2007 SSGI ¶ 189.) ⁷

Given the DAO's policy of referring criminal matters involving DDAs to the Attorney General's ("AG") Office as conflicts of interest,⁸ the DAO referred issues arising from Eng's access of the PIMS system to the AG's Office on September 13, 2002. The referral indicated that, as of September 16, 2002, Eng would be placed on administrative leave for the pendency of the matter, and that a decision regarding discipline was "pending." As a general rule, the DA is not involved in the disciplinary process. However, he did "want[ ] to be advised" of serious matters, including AG referrals. Thus, Livesay, who "could not recall a single other criminal referral to the AG's [O]ffice for any other employee who was ever caught using the DA[O]'s computer system for personal reasons" (2007 SSGI ¶ 221), informed Cooley of the referral near the time it was made. The AG's Office then filed a misdemeanor complaint against Eng for unlawful computer access and receipt or possession of criminal records by an unauthorized person, but the charges were dismissed on January 31, 2003 after the prosecution's primary witness invoked his right against self-incrimination.

In response to the notification of administrative leave that Eng received from Livesay,⁹ Eng retained the services of lawyer Mark Garagos ("Garagos"). Following Eng's receipt of a notice of the DAO's intent to suspend him, Geragos defended Eng at a "Skelly Hearing" with Sowders and Assistant DA Sharon Matsumoto ("Matsumoto"). (2007 SSGI ¶¶ 200, 234-235.) Thereafter, on December 5, 2002, the DAO suspended Eng without pay ("first suspension") under CSR 18.01(A) ¹⁰ based on the then-pending criminal complaintagainst him, effective December 1, 2002. While the Notice of Suspension was signed by Matsumoto, the letterhead also bore Livesay's and Cooley's names. Eng appealed this suspension to the CSC. The Hearing Officer issued a Recommended Decision on May 29, 2003 finding that the first suspension was, in fact, based on the filing of criminal charges against Eng and that there was a nexus between the conduct alleged in the complaint and Eng's DDA duties. Despite the truth of those allegations, the Hearing Officer also concluded that the decision to suspend Eng "without pay" was inappropriate under the circumstances. Accordingly, the Hearing Officer recommended that Eng be made whole for all pay lost during his first suspension. The CSC adopted the Recommended Decision in full.

On February 28, 2003, the Los Angeles Times published an article (which Livesay and Sowders read) airing Plaintiff's contention that he was suffering retaliation because he had voiced his opinions relating to the Belmont...