Vasquez v. City of Bell Gardens

• Decision Date: 07 August 1996
• Docket Number: No. CV-94-1595 KMW (GHKx).,CV-94-1595 KMW (GHKx).
• Citation: 938 F. Supp. 1487
• Court: U.S. District Court — Central District of California
• Parties: William VASQUEZ, Plaintiff, v. CITY OF BELL GARDENS, a municipal corporation; Rodolfo Garcia, city councilperson; Frank Duran, city councilperson; and Rosa Hernandez, city councilperson, Defendants.

938 F. Supp. 1487

William VASQUEZ, Plaintiff, v. CITY OF BELL GARDENS, a municipal corporation; Rodolfo Garcia, city councilperson; Frank Duran, city councilperson; and Rosa Hernandez, city councilperson, Defendants.

No. CV-94-1595 KMW (GHKx).

United States District Court, C.D. California.

August 7, 1996.

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Kimiyo T. Endo, Pension Benefit Guaranty Corporation, Washington, DC, Gwendolyn Gamble, United States Attorney Office, Los Angeles, CA, for plaintiff Pension Benefit Guaranty Corporation.

Andrew R. McCorkle, Reish & Luftman, Washington, DC, Joseph C. Faucher, Los Angeles, CA, for defendants Carter and Tillery Enterprises, et al.

Kenneth M. Miller, Silver, Shaeffer & Hadden, Santa Ana, CA, for plaintiff William Vasquez.

Lee A. Wood, Thomas E. Francis, Lewis, D'Amato, Brisbois & Bisgaard, LLP, Costa Mesa, CA, J. Arnold Beltran, Beltran & Leal, Los Angeles, CA, for defendants City of Bell Gardens, et al.

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

WARDLAW, District Judge.

The Court has considered the Motion for Summary Judgment/Determination as to Whether Plaintiffs Proffered Activities Constitute "Protected Speech," filed by defendants on July 2, 1996, and has reviewed all the material filed by the parties in connection with the Motion. Based upon all briefs, exhibits, declarations, and other evidence submitted by the parties, the oral argument of counsel, as well as all files and records in this case, the Court hereby DENIES defendants' Motion for Summary Judgment in its entirety.

I. INTRODUCTION

Plaintiff William Vasquez claims that he was terminated from his position as city manager of defendant City of Bell Gardens ("the City") in retaliation for exercising his First Amendment rights. Specifically, Plaintiff asserts that a majority of the city council voted to terminate his contract because of his allegations of criminal wrongdoing and abuses of power by certain city councilpersons. The Court concludes that Plaintiff has identified numerous instances of speech which substantially relate to matters of inherent public concern. According to the United States Supreme Court, such speech is the "essence of self-government," and therefore occupies the "highest rung of the hierarchy of First Amendment values." Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). Because defendants have failed to carry their burden of justifying Plaintiff's discharge, their motion for summary judgment must be denied in its entirety.

II. BACKGROUND

On May 1, 1992, Plaintiff was appointed to the position of city manager for the City. Under the City's municipal code, the city manager acts as "the administrative head of the city government under the direction and control of the city council." Municipal Code § 2.08.080. Among the city manager's powers and duties is the mandate to (1) see that the laws of the state pertaining to the city, and all laws and ordinances of the City, are duly enforced; (2) control, order, give directions to, appoint, promote, discipline, and demote or remove all heads of departments and all subordinate officers and employees of the City; and (3) exercise control over, and supervise in general, all departments and divisions of the City government and all appointive officer and employees thereof. Municipal Code § 2.08.080.

Plaintiff claims that shortly after his appointment, he refused and objected to the illegal and unethical demands of the City's mayor, defendant Frank Duran ("Duran"), and city councilpersons Rodolfo Garcia ("Garcia") and Rosa Hernandez ("Hernandez") (collectively, "the individual defendants").¹ As a result, on March 13, 1993, a special meeting of the city council was convened and by a ¶¶ 3 to 2 vote the city council dismissed Plaintiff from his position. Complaint ¶¶ 3, 9. Garcia, Duran and Hernandez voted in favor of Plaintiff's dismissal. Memorandum, Ex. 14.

On March 11, 1994, Plaintiff filed a complaint for damages against the City and the individual defendants. The complaint alleges causes of action for violation of civil rights, 42 U.S.C. § 1983, and for wrongful termination in violation of the California Political Reform Act of 1974, Cal.Government Code §§ 87100, et seq.²

On June 16, 1995, defendants filed a motion for summary judgment on the grounds that, inter alia, Plaintiff had failed to allege or establish that he was terminated as a direct result of the exercise of his First Amendment rights, and that defendants were entitled to complete and/or qualified immunity for their decision to terminate Plaintiff. The motion was denied on July 24, 1995.

On March 18, 1996, the Court considered eleven motions in limine filed by defendants and two motions in limine filed by Plaintiff. The Court granted defendants' third motion (re: Duran's request for stop sign) and granted in part and denied in part defendants' first motion (re: allegations involving the misuse by council member Hernandez of her city issued badge). The other motions in limine were denied. The Court further ordered Plaintiff to file a pretrial statement setting forth the specific speech which he claims was protected and which led to his termination in violation of the First Amendment.³

On July 2, 1996, defendants filed a second motion for summary judgment.⁴ Defendants contend that the speech identified by Plaintiff is not protected by the First Amendment. This motion is now before the Court.

III. ANALYSIS

A. Legal Standard on Motion for Summary Judgment.

It is the burden of the party who moves for summary judgment to establish that there is "no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). If the moving party has the burden of proof at trial (the plaintiff on a claim for relief, or the defendant on an affirmative defense), the moving party must make a showing sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). This means that, if the moving party has the burden of proof at trial, that party must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in that party's favor. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). Furthermore, the court must view the evidence presented to establish these elements "through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

If the opponent has the burden of proof at trial, then the moving party has no burden to negate the opponent's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In other words, the moving party does not have the burden to produce any evidence showing the absence of a genuine issue of material fact. Id. at 325, 106 S.Ct. at 2553. "Instead, ... the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id.

Once the moving party satisfies this initial burden, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings ... The adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). A "genuine issue" of material fact exists only when the nonmoving party makes a sufficient showing to establish an essential element to that party's case, and on which that party would bear the burden of proof at trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which a reasonable jury could reasonably find for plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Id. at 248, 106 S.Ct. at 2510; Griffeth v. Utah Power & Light Co., 226 F.2d 661, 669 (9th Cir.1955).

B. Defendants' Motion for Summary Judgment Must Be Denied.

1. Legal Principles Governing the Exercise of First Amendment Rights by Public Employees.

The statute under which Plaintiffs claim is brought, 42 U.S.C. § 1983, is not a source of substantive rights, but provides a means for vindicating federal rights elsewhere conferred. Baker v. McCollan, 443 U.S. 137, 144, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979). A violation of section 1983 may occur when an employee is retaliated against for speech protected by the First Amendment. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1983).

"Speech concerning public affairs is more than self-expression; it is the essence of self-government. Accordingly, speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). "It is apparent that the threat of dismissal from public employment is ... a potent means of inhibiting speech." Pickering v. Board of Education of Township High School District, 391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968). Accordingly, a public employer may not terminate an employee in violation of his First Amendment rights. Id. A public employee's First...