Fallay v. San Francisco City, C 08-2261 CRB
| Decision Date | 04 December 2015 |
| Docket Number | No. C 08-2261 CRB,C 08-2261 CRB |
| Court | U.S. District Court — Northern District of California |
| Parties | AUGUSTINE FALLAY, Plaintiff, v. SAN FRANCISCO CITY AND COUNTY, et al., Defendants. |
Plaintiff Augustine Fallay filed a Third Amended Complaint ("TAC") (dkt. 156) in response to the Court's direction that he amend "consistent with the issues the 9th Circuit Court has stated are to be adjudicated[.]" See Minutes (dkt. 155); Fallay v. City and Cnty. of San Francisco, No. 10-16437 (9th Cir. 2015) (dkt. 143) ("Mem.").1 In that Complaint, as in his earlier complaints, Plaintiff claims to be the victim of a conspiracy by three separate groups of Defendants: (1) FBI agents David Carr and Bruce Whitten; (2) the City and County of San Francisco, the San Francisco Department of Building Inspection, the San Francisco District Attorney's Office, and City employees Lawrence Badiner, Craig Nikitas, Amy Lee,Carla Johnson,2 and Raymond Tang; and (3) First American Specialty Insurance Company ("FASIC") and employees Robert Dalton and Cindy Lloyd. See generally TAC. Plaintiff alleges that this conspiracy consisted of "a campaign of illegal and unconstitutional conducts of discrimination, harassment, humiliation, defamation of character, intimidation, and malicious prosecution . . . ." See id. ¶ 20. He includes many of the same claims from his Second Amended Complaint ("SAC"), see SAC (dkt. 68), and some new ones, see TAC. All three groups of Defendants move to dismiss the TAC on various grounds, and FASIC moves to strike the TAC. See Insurer Defendant's Special Mot. to Strike and Mot. to Dismiss ("FASIC Mot.") (dkt. 157); Federal Defendants' Mot. to Dismiss ("Fed. Mot.") (dkt. 158)3; City and County Amended Mot. to Dismiss ("C.C. Mot.") (dkt. 165). For the reasons below, the Court GRANTS the Motion to Strike, and GRANTS in part and DENIES in part the Motions to Dismiss.
Plaintiff is an African-American man from Sierra Leone. See TAC ¶ 9. In 2000, Plaintiff came to the attention of his employer, San Francisco's Department of Building Inspection, for having taken a $50,000 "loan" from a real estate developer, Tony Fu, who frequently had projects pending with the department. See Fed. Mot. at 3; C.C. Mot. at 1; Ex. A (dkt. 164-1) at 34 (). Pursuant to his employment, Plaintiff was required toannually submit a Statement of Economic Interest Form 700. See Ex. A at 3. Plaintiff failed to disclose any of the loans or gifts he received from Fu. Id. The Department of Building Inspection terminated Plaintiff. Id. Plaintiff alleges that his investigation and termination were in fact retaliation for Plaintiff's refusing to help the FBI in 1999 with a sting operation. See TAC ¶ 24. He further alleges that his status as an African-American immigrant "led the defendants to pick him out to use, to try to manipulate, and unjustly sanction[.]" See id. ¶¶ 21-25.
In 2007, the San Francisco District Attorney prosecuted Plaintiff on 33 counts of fraud and corruption. See Fed. Mot. at 3; see also Ex. B (dkt. 164-2)5. The jury acquitted Plaintiff of four counts of bribery (counts 13, 14, 15, and 29). See Ex. B at 4244-47. The court declared a mistrial on counts 1-2, 16-29, and 30-33 because the jury could not reach a verdict. See id. at 4247-48. In 2009, pursuant to a collective bargaining agreement, Plaintiff brought his termination before an arbitrator. See Ex. A; see also Fed. Mot. at 4. The arbitrator upheld Plaintiff's termination, finding that "the nature of the offense in failing to disclose a $50,000 loan from individuals who he clearly knew did business with the City's Department of Building Inspection is so destructive of the Employer-employee trust that the process of engaging in progressive discipline in order to rehabilitate the [Plaintiff] [as the union suggests] could not possibly be effective." See Ex. A at 37.
Plaintiff initiated this case in 2008, alleging a wide range of civil rights and constitutional violations by the City and County of San Francisco, the FBI, the United States government, his insurance company, and various individuals, including governmental employees. See generally Compl. (dkt. 1). He amended in June 2009, see FAC (dkt. 17), and the Court dismissed the First Amended Complaint in December 2009, see December 2009 Order (dkt. 67). Plaintiff promptly amended again in January 2010. See SAC (dkt. 68).
In June 2010, this Court dismissed Plaintiff's Second Amended Complaint, largely based on its being time-barred. See June 2010 Order (dkt. 112).6 Plaintiff appealed. See Notice of Appeal (dkt. 115). The Ninth Circuit affirmed in part and reversed in part, and gave Plaintiff specific directions as to how he should amend. See generally Mem. This Court instructed Plaintiff to amend for a third time, consistent with the Ninth Circuit's order. See Minute Entry. Plaintiff filed his TAC, see TAC, and all of the Defendants now again move to dismiss, see Fed. Mot.; FASIC Mot.; C.C. Mot. FASIC additionally moves to strike the TAC under the anti-SLAPP statute. See FASIC Mot.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief may be granted. Dismissal may be based on either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). For purposes of evaluating a motion to dismiss, a Court "must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Moreover, a Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Rather, a complaint must plead "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). A claim is plausible "when the plaintiff pleads factualcontent that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
California's anti-SLAPP statute "is designed to discourage suits that 'masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.'" In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1272 (9th Cir. 2013) ("NCAA Student-Athlete Litig.") (quoting Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003)). The anti-SLAPP statute sets forth a procedure by which defendants can move to strike SLAPP claims:
A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that there is a probability that the plaintiff will prevail on the claim.
Cal. Code Civ. P. § 425.16(b)(1).
When deciding a motion to strike pursuant to the anti-SLAPP statute, the court's analysis has two-steps. First, "defendant bears the initial burden to show that the statute applies because the lawsuit arises from defendant's act in furtherance of its right of petition or free speech." Doe v. Gangland Prods., Inc., 730 F.3d 946, 953 (9th Cir. 2013).7 If the defendant makes that showing, the court then considers whether the plaintiff has demonstrated "a reasonable probability" of prevailing on the merits of his claims. NCAA Student-Athlete Litig., 724 F.3d at 1273 (quoting Batzel, 333 F.3d at 1024). The Ninth Circuit has characterized the standard to withstand an anti-SLAPP motion as "a low bar": "plaintiff must demonstrate that the complaint is both legally sufficient and supported by asufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Roberts v. McAfee, Inc., 660 F.3d 1156, 1163 (9th Cir. 2011) (quoting Manufactured Home Cmties., Inc. v. Cnty. of San Diego, 655 F.3d 1171, 1176-77 (9th Cir. 2011)). Although "the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim." Id.
Each of the Defendants argues various grounds for dismissal. The Federal Defendants argue that the TAC raises claims that were barred by the Ninth Circuit, and that Plaintiff's Bivens claim for malicious prosecution fails because he did not receive a favorable outcome at trial. See Fed. Mot. The FASIC Defendants move to strike due to California's anti-SLAPP statute and in the alternative, move to dismiss for the same reasons. See FASIC Mot. The City and County Defendants argue that each of Plaintiff's claims fail for different reasons. See C.C. Mot. The Court will address each Defendant's motion in turn.
On appeal, the Ninth Circuit reversed this Court as to the Bivens action for malicious prosecution8 and affirmed this Court's dismissal of Plaintiff's federal claims against...
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