Konig v. State Bar of California, A113742 (Cal. App. 9/28/2007)

Decision Date28 September 2007
Docket NumberA113742
CourtCalifornia Court of Appeals Court of Appeals
PartiesALAN KONIG, Plaintiff and Appellant, v. THE STATE BAR OF CALIFORNIA et al. Defendants and Respondents.


Plaintiff is a former attorney on the staff of the State Bar of California (State Bar). His complaint alleges that he became aware of unethical and improper conduct by judges of the State Bar Court (Bar Court). When his superiors refused to take steps to report this misconduct, plaintiff notified various regulatory bodies. Thereafter, he was subjected to a number of negative employment actions, allegedly in retaliation for speaking out regarding the conduct of the Bar Court judges, and he eventually resigned his position.

Plaintiff initially sued the State Bar and several of his superiors in federal district court. The district court dismissed without prejudice all of his claims against the State Bar on Eleventh Amendment grounds and eventually granted summary judgment on his claims against the individual defendants. After plaintiff refiled his claims in state court, the superior court granted judgment on the pleadings, holding that the claims were barred by the preclusive effect of the federal judgment or were otherwise legally deficient. We reverse in part, concluding that plaintiff's claim for defamation against the State Bar and the individual defendants acting in their official capacities is not barred by the federal judgment. We otherwise affirm.


Plaintiff was formerly employed as an attorney in the Office of the Chief Trial Counsel of the State Bar (office), having resigned from his position on October 27, 2004. Prior to his resignation, on June 4, 2004, plaintiff filed a lawsuit in United States District Court against the State Bar and several of his superiors in the office, defendants Lawrence Dal Cerro, Russell Weiner, Allen Blumenthal, and Robert Hawley. The federal complaint alleged that plaintiff was hired by the State Bar in 1999 to litigate matters concerning attorney regulation and discipline. Beginning in May 2003, plaintiff began to report to his superiors, including some of the individual defendants, misconduct by the judges of the Bar Court. Plaintiff asked them to report this misconduct to regulatory authorities and threatened to act independently if they did not. When his superiors took no action, plaintiff filed his own complaint regarding the judges' misconduct with the Commission on Judicial Performance and made reports to other governmental bodies. The complaint alleged that, in retaliation for this activity, the individual defendants took negative employment actions against plaintiff and failed to prevent other harassing conduct directed toward him. The complaint joined claims for retaliation under Labor Code section 1102.5, Government Code section 9149.20, and the common law and two claims under title 42 United States Code section 1983 (hereafter section 1983), for violation of plaintiff's First and Fourteenth Amendment rights. Plaintiff sought compensatory and punitive damages and injunctive relief requiring defendants to expunge critical material from his employment records.

Defendants filed a motion to dismiss, arguing that the claims were barred by the Eleventh Amendment, which prohibits the federal courts from hearing lawsuits against a state. In a written decision, the district court held that the State Bar was immune, under the Eleventh Amendment, from suits seeking monetary or injunctive relief in federal court. (Konig v. State Bar of Cal. (N.D.Cal., Sept. 16, 2004, No. C 04-2210 MJJ) 2004 U.S.Dist. Lexis 19498.) The district court also extended this immunity to claims for monetary, but not injunctive, relief against the individual defendants while acting in their official capacities. The district court further held, among other rulings, that plaintiff's section 1983 cause of action alleging a violation of the Fourteenth Amendment failed to state a claim and that his state law claims were barred for failure to comply with the Tort Claims Act (Gov. Code, § 810 et seq.).

As a result of the ruling, all of plaintiff's claims against the State Bar were dismissed "without prejudice to refiling in state court," as were all of his state claims and his federal claims for damages against the individual defendants acting in their official capacities. Regarding plaintiff's claims against the individual defendants acting in their individual capacities, the district court dismissed without prejudice plaintiff's section 1983 claim under the Fourteenth Amendment, dismissed with prejudice his claim under Labor Code section 1102.5 and his common law retaliation claim, and dismissed his Government Code section 9149.23 claim with leave to amend to plead compliance with the Tort Claims Act.

On October 4, 2004, plaintiff filed an amended complaint against the individual defendants containing similar factual allegations but alleging only claims under section 1983 for violation of his First and Fourteenth Amendment rights. The defendants initially filed a motion for partial summary judgment directed against plaintiff's section 1983 claim under the Fourteenth Amendment. The district court granted the motion, concluding that the Fourteenth Amendment did not entitle plaintiff to notice and a hearing prior to the negative employment actions he alleged and that the grievance procedure contained in a memorandum of understanding (MOU) between the State Bar and the union representing the State Bar's attorney employees was not constitutionally deficient. (Konig v. Dal Cerro (N.D.Cal., Apr. 6, 2005) No. C 04-2210 MJJ.)

The individual defendants then filed a motion for partial summary judgment with respect to plaintiff's other cause of action, alleging a violation of his First Amendment rights. The district court's detailed written decision granting this motion began by reviewing the evidence submitted by the parties. According to the decision, plaintiff's job was to litigate matters in the Bar Court and superior court relating to attorney admission, regulation, and discipline. (Konig v. Dal Cerro (N.D.Cal., Oct. 11, 2005, No. C 04-2210 MJJ) 2005 U.S.Dist. Lexis 24560.) Defendants Dal Cerro and Blumenthal were plaintiff's immediate supervisors, with Hawley and Weiner above them in the chain of command. In 2002, plaintiff began to complain to his superiors that the two Bar Court judges in San Francisco lacked judicial decorum, acted unethically, and issued improper rulings. Defendants came to believe that plaintiff had developed a hostile relationship with these judges, which concerned them because the State Bar's attorneys appeared in front of these judges continually.

In September 2003, plaintiff wrote a memorandum to Dal Cerro, claiming that he was not getting sufficient support from his superiors and that he was being treated unfairly by the Bar Court judges. He also wrote a letter to a former witness in which, his superiors believed, he improperly disclosed the State Bar's work product and mocked a superior. Soon thereafter, plaintiff met with Dal Cerro in the presence of a union representative. According to plaintiff, Dal Cerro made several false allegations about his work and purportedly insubordinate conduct during that meeting. This precipitated an exchange of memos between plaintiff and Dal Cerro in which, plaintiff alleged, more misrepresentations were made. Plaintiff was reassigned from a pending case because of concerns by his supervisors over his conduct.

In November and December 2003, plaintiff filed several written complaints with various governmental agencies regarding one of the Bar Court judges. In mid-November, plaintiff specifically disregarded the direction of one of his superiors, for which he was issued a formal written warning. When plaintiff failed to sign or comply with the first written warning, he was issued a second. In November, he was also given a performance review. The review was generally positive, but it noted his antagonistic encounters with the Bar Court judges and others.

In January, plaintiff was reassigned from some trial responsibilities to focus on drafting documents, since he was clashing with the judges and others in courtroom proceedings. Following his reassignment, plaintiff engaged in several acts of insubordination, refusing to follow office guidelines and generally resisting instruction from his superiors, and he accused his superiors of harassment and unethical conduct. In May, Dal Cerro presented plaintiff with a "Performance Improvement Plan" (plan), which listed deficiencies in his work performance and provided guidance for improvement. Plaintiff responded with a 25-page memorandum challenging the basis of the plan and contending that it was retaliatory and harassing. When plaintiff failed to comply with the plan, he was issued a notice of disciplinary action in August, suspended for three days, and removed from all further court appearances. At this point, plaintiff took a voluntary leave of absence, staying away from work until his resignation in October 2004.

Analyzing plaintiff's First Amendment claim, the district court concluded that plaintiff engaged in several types of speech protected by the First Amendment, including statements of intent to seek redress from various governmental authorities, written complaints to those authorities, and two internal memoranda that included discussion of his dissatisfaction with the Bar Court judges. The district court then reviewed the conduct of each individual defendant, concluding that plaintiff submitted evidence of negative employment actions by only three of them, Dal Cerro, Blumenthal, and Hawley. Finally, the district court analyzed the evidence that, plaintiff claimed, demonstrated that these negative employment actions were motivated by retaliation. He found no...

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