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holding that compliance with CTCA was required for plaintiff's claim under California Labor Code § 1102.5
Summary of this case from IMEL v. COUNTY OF EL DORADOOpinion
No. C 04-2210 MJJ.
September 16, 2004
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS KONIG'S FIRST AMENDED COMPLAINT
INTRODUCTION
Before the Court is a motion to dismiss brought by Defendants The State Bar of California ("State Bar"), Lawrence J. Dal Cerro, Russell Weiner, Allen Blumenthal, and Robert Hawley (collectively, "Defendants") in this employment retaliation case. Plaintiff Alan Konig opposes the motion. For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.
FACTUAL BACKGROUND
Plaintiff was, and may currently be, employed by Defendant State Bar as Deputy Trial Counsel within the Office of the Chief Trial Counsel ("OCTC") in San Francisco. (Complaint ("Compl.") at 2:5-7.) Plaintiff was charged with litigating matters in the State Bar Court and State Superior Court related to attorney admission, licensing, regulation, and discipline. ( Id. at 2:23-27.) Plaintiff alleges that beginning in May 2003, he repeatedly advised Defendants Dal Cerro and Weiner that various rulings and orders in several State Bar Court matters violated the State Bar's state and federal constitutional rights, violated witnesses' state and federal constitutional rights, and disregarded binding precedent. Moreover, Plaintiff advised his colleagues that the State Bar Court lacked judicial decorum and acted contrary to the Code of Judicial Ethics. ( Id. at 3:1-8.) Plaintiff urged Defendant Dal Cerro to take action in response to the conduct of the State Bar Court, and informed Defendant Dal Cerro that if he did not take action, Plaintiff himself would report the actions of the State Bar Court to the California Commission on Judicial Performance (CJP). Plaintiff's requests were rejected. ( Id. at 3:9-16.)On September 11, 2003, Plaintiff submitted to Defendant Dal Cerro a memorandum detailing, among other things, the malfeasance of Defendants in performing their statutory obligations. ( Id. at 3:17-22.) On November 3, 2003, Plaintiff allegedly complained to the CJP. Plaintiff now alleges that the OCTC discovered the CJP complaint and required Plaintiff to confirm that he was the complainant. ( Id. at 3:23-25.) In November and December of 2003, Plaintiff made similar complaints to the State Bar Board of Governors, the California Senate and Assembly Judiciary Committees, and the California State Personnel Board. ( Id. at 4:1-6.)
The gravamen of Plaintiff's complaint is that beginning in October 2003, Defendants allegedly have "repeatedly directed Plaintiff to engage in activity or conduct that would violate the rules of Procedure of the State Bar of California, the California Rules of Professional Conduct, and the State Bar Act as codified at California Business Professions Code section 6000, et seq." ( Id. at 4:7-11.) Plaintiff alleges that he "repeatedly refused to comply with each directive." ( Id. at 4:10-11.)
Plaintiff's complaint asserts state law causes of action for (1) retaliation under California Labor Code sections 1102.5(a), (b), and (e), (2) retaliation under California Government Code sections 9149.20, et seq., and (3) retaliation under the common law doctrine established in Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980). Plaintiff asserts two federal law causes of action under section 1983 of the Civil Rights Act ( 42 U.S.C. 1983), (1) asserting retaliation for speech protected by the First Amendment, and (2), asserting the denial of his due process rights under the Fourteenth Amendment. Within all five causes of action, Plaintiff alleges that Defendants committed an adverse employment action, permitted the disparate and unfair treatment of Plaintiff, permitted the harassment of Plaintiff, and permitted a hostile work environment. Because the complaint does not specify which causes of action are directed at each of the five defendants, the Court assumes that Plaintiff intended to direct each cause of action against all defendants.
LEGAL STANDARD
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the claims asserted in the complaint. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337 (9th Cir. 1996). Dismissal of an action pursuant to Rule 12(b)(6) is appropriate only where it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-6 (1957)). In reviewing such a motion, the Court must assume all factual allegations to be true and must construe them in the light most favorable to the nonmoving party. See North Star v. Arizona Corp. Comm., 720 F.2d 578, 580 (9th Cir. 1983). The Court will dismiss the complaint or any claim in it without leave to amend only if "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
In the context of a motion to dismiss, review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. General Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). However, matters properly presented to the court, such as those attached to the complaint and incorporated within its allegations, may be considered as part of the motion to dismiss. See Hal Roach Studios, Inc. v. Richard Feiner Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1989).
ANALYSIS
I. Eleventh Amendment Sovereign Immunity
A. The State Bar's Immunity
As a threshold matter, the Court must decide whether any of Plaintiff's claims are barred by the Eleventh Amendment. Sovereign immunity under the Eleventh Amendment creates a subject matter jurisdictional hurdle for plaintiffs suing state governments in federal court. See Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (declaring that "the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III."). Specifically, "[t]he Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, an 'arm of the state,' its instrumentalities, or its agencies." Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) (citing Durning v. Citibank, N.A., 950 F.2d 1419, 1422-23 (9th Cir. 1991)).
While there is considerable debate over what type of entity the State Bar is in the context of other constitutional and statutory claims, the narrow issue before the Court is whether the State Bar is subject to Eleventh Amendment immunity. The Ninth Circuit and this Court have held that the Eleventh Amendment applies to the State Bar. See Hirsh v. Justices of the Supreme Court, 67 F.3d 708, 715 (9th Cir. 1995) (per curiam) (holding that "sovereign immunity bars monetary relief from state agencies such as California's Bar Association and Bar Court."); Lupert v. California State Bar, 761 F.2d 1325, 1327 (9th Cir. 1985) (finding that the Eleventh Amendment bars suit against California's State Bar Board of Governors and the Committee of Bar Examiners); Wu v. State Bar of California, 953 F. Supp. 315, 318-319 (N.D. Cal. 1997) (noting that the "Eleventh Amendment provides the State Bar of California with immunity from suits in federal court for monetary relief."); Ramos v. California Comm. of Bar Examiners, 857 F. Supp. 702, 705 (N.D. Cal. 1994) (finding that the Committee of Bar Examiners is "clearly an arm of the State" for Eleventh Amendment purposes.).
Plaintiff makes an interesting argument that the State Bar is not a state agency, and therefore, not subject to Eleventh Amendment immunity. Plaintiff relies on Keller v. State Bar of California, 496 U.S. 1 (1990), which held that the State Bar could not use its members' compulsory dues to finance political and ideological activities not related to the purpose of regulating the legal profession or improving the quality of legal services. Id. at 4, 13-14. In arriving at this holding, the Court found that for purposes of federal law, the "State Bar of California is a good deal different from most other entities that would be regarded in common parlance as 'governmental agencies.'" Id. at 11. The Court went on to delineate the differences between the State Bar and typical state agencies, finding that the State Bar was more analogous to a labor union. Id. at 12.
The State Bar's argument in Keller was that its status as a regulated state agency exempted it from any constitutional constraints on the use of its compulsory dues. Keller, 496 U.S. at 10.
While Plaintiff is correct in his understanding of the Keller holding and analysis, the case has no relevance in the context of Eleventh Amendment sovereign immunity. Keller is a First Amendment freedom of speech and association case. The case does not hold, or even suggest, that the State Bar is not entitled to immunity. Similarly, Plaintiff's reliance on Hoffman v. State Bar, 113 Cal. App. 4th 630 (2003), is inapposite because the case does not address the status of the State Bar in the context of the Eleventh Amendment.
Keller was before the Court on a grant of writ of certiorari from a decision rendered by the California Supreme Court. Keller, 496 U.S. 1.
Plaintiff argues that the State Bar should be collaterally estopped from litigating the Eleventh Amendment immunity issue, presumably because the State Bar was a party to the Keller and Hoffman cases. Because Eleventh Amendment immunity was not the legal issue in those cases, Defendant State Bar is not collaterally estopped from litigating the issue in the present case.
Plaintiff correctly refers to the Mitchell factors used to determine whether a particular state entity is a state agency entitled to Eleventh Amendment immunity. See Mitchell v. Los Angeles, 861 F.2d 198, 201 (9th Cir. 1988). Interestingly, the Ninth Circuit did not apply these Mitchell factors, or any other test, to determine whether the State Bar was a state agency for immunity purposes in Hirsh and Lupert, supra. While it is unclear whether the State Bar would be deemed a state agency if the Ninth Circuit were to analyze the issue applying the Mitchell factors, the law in this circuit holds that the State Bar is immune from suits seeking monetary or injunctive relief in federal court. See Yong v. Immigration and Naturalization Serv., 208 F.3d 1116, 1119 n. 2 (9th Cir. 2001) ("once a federal circuit court issues a decision, the district courts are bound to follow it"); Zuniga v. United Can Co., 812 F.2d 443, 450 (9th Cir. 1987) (noting that district courts are bound by the law of their own circuit "'no matter how egregiously in error they may feel their own circuit to be'").
The factors are "whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only the name of the state, and the corporate status of the entity." Mitchell, 861 F.2d at 201.
B. Individual Defendants' Immunity
The Eleventh Amendment immunity of the State Bar extends to Defendants Dal Cerro, Weiner, Blumenthal, and Hawley. See Hirsch, 67 F.3d at 715. The Supreme Court has held that a defendant acting in his official capacity receives the same immunity as the government agency for which he works. Hafer v. Melo, 502 U.S. 21, 25 (1991). However, "state officials, sued in their individual capacities, are 'persons' within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the 'official' nature of their acts." Id. at 31. Because Plaintiff has sued Defendants Dal Cerro, Weiner, Blumenthal, and Hawley individually, in addition to suing them in their official capacities, the individual Defendants are not immune from Plaintiff's section 1983 claims.
Furthermore, the Eleventh Amendment does not bar suits to enjoin violations of federal law against state officers. Ex Parte Young, 209 U.S. 123, 159-160 (1908). Since Plaintiff has sued Defendants for injunctive relief (Comp. at 10:24-28, 11:1-5), this relief sought by Plaintiff is not barred by the Eleventh Amendment.
This exception to Eleventh Amendment immunity applies only to prospective relief, even when compliance with the injunction will cost the state a great deal of money in the future. The exception does not extend to retroactive relief. See Edelman v. Jordan, 415 U.S. 651 (1974).
C. State Law Claims
Defendant State Bar and Defendants, acting in their official capacity, are immune from Plaintiff's state law claims. The Supreme Court has held that Eleventh Amendment immunity applies to state law claims brought in federal court under supplemental jurisdiction. Pennhurst, 465 U.S. at 121. Moreover, the Ex Parte Young exception to Eleventh Amendment immunity does not apply to state law claims. The Court has held that federal courts are barred by the Eleventh Amendment from enjoining state officers from violating state law. Pennhurst, 465 U.S. at 106 (noting the intrusion on state sovereignty when a federal court instructs state officials on how to conform their conduct to state law). In this case, the state law retaliation claims against Defendant State Bar and Defendants, acting in their official capacity, are barred by the Eleventh Amendment. This immunity does not extend to Plaintiff's state law claims against Defendants, sued as individuals.
II. Federal Law Claims
A. Motion to Dismiss Section 1983 Claims for Failure to Plead Sufficient Facts
Defendants contend that Plaintiff's section 1983 claims against the individual defendants fail to state any specific allegations against any of them, and thus must be dismissed under Federal Rule of Civil Procedure 12(b)(6). (State Bar's Motion to Dismiss ("Mot.") at 7:1.)
Motions to dismiss for failure to state a claim "are generally viewed with disfavor." Ramos, 857 F. Supp. at 704. "Each averment of a pleading shall be simple, concise, and direct." Fed.R.Civ.Proc. § 8(e)(1). Under this liberal pleading standard, "a complaint should not be dismissed unless it appears 'beyond doubt' that plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief." Ramos, 857 F. Supp. at 704 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Moreover, courts must assume that all general allegations "embrace whatever specific facts might be necessary to support them." Peloza v. Capistrano Unified School Dist., 37 F.3d 517, 521 (9th Cir. 1994).
Defendants argue that Plaintiff's complaint fails to make "specific allegations" and consists of insufficient "generic pleading." (Mot. at 7, 8:13-16.) Relying on Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984), Defendants argue that "[c]onclusionary allegations, unsupported by facts, will be rejected as insufficient to state a claim under the Civil Rights Act." (Mot. at 7:3-5.) Furthermore, Defendants rely on Crawford-El v. Britton, 523 U.S. 574, 598 (1998), noting that "the court may insist that the plaintiff 'put forward specific, nonconclusory factual allegations' that establish improper motive . . . in order to survive a prediscovery motion for dismissal or summary judgment." (Mot. at 7:7-12.)
In interpreting Crawford-El, the Ninth Circuit has noted that "nearly all of the circuits have now disapproved any heightened pleading standards in cases other than those governed by Rule 9(b)." Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). The Ninth Circuit also has noted the Supreme Court's holding that "courts could not impose a heightened pleading standard on plaintiffs alleging § 1983 claims against municipalities." Id. at 1124 (referring to Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993)). These findings in Galbraith evidence that both the Supreme Court and Ninth Circuit adhere to liberal pleading standards for section 1983 actions.
Although the State Bar is more akin to a state agency than a municipality, this distinction is likely irrelevant for section 1983 pleading standards.
A Rule 12(b)(6) dismissal is proper only where there is either a "lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept. 901 F.2d 696, 699 (9th Cir. 1990). The issue then is whether Plaintiff's federal claims sets forth sufficient facts alleged under a cognizable legal theory.
B. First Amendment Claim
Defendants argue that Plaintiff's claim for retaliation for the exercise of his First Amendment rights should be dismissed. (Mot. 7-9.) Specifically, Defendants assert that "workplace gripes do not constitute protected speech" and that public employees do not "have a constitutional right to be insubordinate." ( Id. at 8:18, 24.)
A prima facie case of retaliation under the First Amendment requires a showing that "(1) [The plaintiff] engaged in protected speech; (2) the defendants took an 'adverse employment action' against [him]; and (3) [his] speech was a 'substantial or motivating' factor for the adverse employment action." Thomas v. City of Beaverton, No. 03-35120, 2004 U.S. App. LEXIS 16739, at *8 (9th Cir. Aug. 16, 2004) (citation omitted). For the first prong, speech is protected if the plaintiff spoke "'as a citizen upon matters of public concern.'" Id. at *8 (citation omitted). "Unlawful conduct by a government employee or illegal activity within a government agency is a matter of public concern." Id. at *11. Second, an adverse employment action "need not be severe and it need not be of a certain kind." Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003) (noting that the relevant inquiry is "whether the state had taken 'action designed to retaliate against and chill political expression'") (citation omitted). Lastly, whether Plaintiff's speech motivated the adverse employment action is a triable issue of fact.
In his complaint, Plaintiff averred that his speech, directed at both Defendants and appropriate governmental oversight agencies, consisted of complaints regarding the State Bar Court's violation of constitutional rights. (Compl. at 3-4.) This type of speech, regarding illegal activity within a government agency, is protected by the First Amendment. Moreover, Plaintiff alleged that in response to these complaints, Defendants subjected Plaintiff to harassment, threats, disparate and unfair treatment, and permitted a hostile work environment. ( Id. at 8:24, 27-28.) The Court finds that for purposes of a 12(b)(6) motion to dismiss, Plaintiff has plead sufficient facts for a retaliation claim under the First Amendment.
C. Fourteenth Amendment — Due Process Claim
Again, the issue is whether Plaintiff's federal claims set forth sufficient facts alleged under a cognizable legal theory. Balistreri, 901 F.2d at 699. To prevail, Plaintiff is required to show "(1) a property interest protected by the Constitution; (2) a deprivation of the interest by the government; and a (3) lack of required process." Ulrich v. City and County of San Francisco, 308 F.3d 968, 974 (9th Cir. 2002). Assuming arguendo that Plaintiff has a property interest in his employment at the State Bar, there is no indication in Plaintiff's pleadings that Defendants have deprived him of this interest. The cases addressing the deprivation of a property interest in state employment involve either the resignation, denial of some benefit or future employment, or most commonly, the termination of the plaintiff employee. See Bd. of Regents v. Roth, 408 U.S. 564 (1972) (failure to rehire professor); Ulrich, 308 F.3d 968 (resignation of doctor); Clements v. Airport Auth. of Washoe County, 69 F.3d 321 (9th Cir. 1995) (termination of airport employees); Walker v. Berkeley, 951 F.2d 182 (9th Cir. 1991) (termination of city employee); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (termination of civil servant security guard). In his complaint, Plaintiff merely alleges that Defendants directed him to engage in "activity or conduct that would violate" the law. (Comp. ¶ 17.) Plaintiff does not cite to any case law which suggests that this directive constitutes a deprivation of one's property interest. For this reason, Plaintiff's Fourteenth Amendment due process claim is dismissed.
Plaintiff's complaint states that his employment with Defendant State Bar "is not 'at will' and is only terminable by Defendant State Bar for 'good cause.'" (Compl. ¶ 48.) However, Plaintiff fails to allege anywhere in the pleading that he was even terminated. Plaintiff did not brief this issue in his opposition to the motion to dismiss.
III. STATE LAW CLAIMS
A. Applicability of California Tort Claims Act ("CTCA")
Plaintiff brings three state law retaliation claims against Defendants under California Labor Code sections 1102.5(a), (b), and (e), Government Code section 9149.23, and under the common law Tameny doctrine. Defendants seek dismissal of these claims based on Plaintiff's failure to comply with the CTCA. Under section 945.4 of the California Government Code, "no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . ." Cal. Gov. Code § 945.4. "Timely compliance with the claim filing requirements and rejection of the claim by the governmental agency must be pleaded in a complaint in order to state a cause of action." Dujardin v. Ventura County General Hospital, 69 Cal. App. 3d 350, 355 (1977). This state law requirement applies in federal court. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1998) (affirming dismissal of state law claims for "fail[ing] to allege compliance with California tort claim procedures.").
The Court has already determined in Part I of this Order that claims against Defendant State Bar and Defendants, acting in their official capacity, are not cognizable under Pennhurst.
Plaintiff asserts, similar to his Eleventh Amendment argument, that since Defendant State Bar is not a state agency for federal law purposes, the CTCA does not apply and Defendant cannot invoke the CTCA as a defense. (Konig's Opposition ("Opp.") at 16:3-11.) Plaintiff's argument is without merit. First, the CTCA applies to "local public entities," which include "public corporation[s] in the State." Cal. Gov. Code § 900.4. Under the California Business and Professions Code, "[t]he State Bar is a public corporation." Cal. Bus. Prof. Code § 6001. A California court has also noted precedent finding that the CTCA applies to tort allegations against the State Bar. Smith v. State Bar, 212 Cal. App. 3d 971, 976 (citing Engel v. McCloskey, 92 Cal. App. 3d 870 (1979)).
Plaintiff also argues that his state law claims under Labor Code section 1102.5 and Government Code section 9149.20 are exempt from the CTCA: "In essence, the section states the obvious — the Act does not abrogate existing statutory claims (as opposed to common law tort claims)." (Opp. at 16:13-15.) However, under the CTCA all governmental tort liability is based on statute, as opposed to common law tort doctrine. See Soliz v. Williams, 74 Cal. App. 4th 577, 585 (1999). Furthermore, in Shoemaker v. Myers, 2 Cal. App. 4th 1407, 1425-1426 (1992), a California appellate court applied the claim requirements of section 945.4 to the plaintiff's statutory whistle-blower claim and Tameny claims. For these reasons, Plaintiffs state law causes of actions are claims required to be presented to the State Bar before bringing suit for money or damages. Absent allegation satisfying this requirement, Defendants' request for dismissal is appropriate.
Plaintiff's argument that his claim for injunctive relief precludes adherence to section 945.4 is without merit. (Opp. at 16:20-24.) It is true that claims for injunctive and declaratory relief need not be presented to the State Bar under section 945.4 before bringing suit. Snipes v. City of Bakersfield, 145 Cal. App. 3d 861, 870 (1983). However, in Loehr v. Ventura County Community College Dist., 147 Cal. App. 3d 1071, 1081 (1984), the court found that the general rule that the claims statutes do not apply to actions seeking injunctive relief "has no application . . . where a petition for extraordinary relief is merely incidental or ancillary to a prayer for damages." While Plaintiff's third prayer for relief seeks injunctive relief, this relief is merely ancillary to his prayer for compensatory and punitive damages for loss of compensation, loss of enjoyment, pain and suffering, and emotional distress. (Compl. 10-11.)
Finally, Plaintiff's submission of a claim, pursuant to California Government Code section 9149.21, to the State Bar Board of Governors ("BOG") in November 2003 is inadequate for section 945.4 purposes. (Compl. ¶ 15; Opp. at 17:1-4.) Section 9149.21 states the legislative intent of the California Whistleblower Protection Act. Plaintiff cannot rely on his "whistleblowing" complaint, which was to notify the BOG of the State Bar Court's constitutional violations, to meet the requirements of section 945.4. A section 945.4 claim must include a description of Plaintiff's injury and the name of the employee who caused the injury. Cal. Gov. Code § 910. Plaintiff does not aver that his complaint to the BOG meets this standard. For the foregoing reasons, Plaintiff's state claims against Defendants are dismissed.
B. Alternative Grounds for Dismissal of Plaintiff's First, Second, and Third Causes of Action (Retaliation Claims)
Plaintiff brings three retaliation claims against Defendants under California Labor Code sections 1102.5(a), (b), and (e), Government Code section 9149.23, and under the common law Tameny doctrine.
Defendants correctly assert that Labor Code section 1102.5 applies to employers. (Mot. 12:18-19.) Plaintiff does not dispute this assertion. (Opp 19:20-21.) Because the Eleventh Amendment bars suit against the State Bar, the employer in this action, Plaintiff's section 1102.5 claim is dismissed.
Likewise, Government Code section 9149.23 only applies to employees, and Plaintiff does not dispute this finding. (Opp. 19:20-21.) Because the Eleventh Amendment applies to Defendants acting in their official capacity, this claim is dismissed as to those Defendants. The Eleventh Amendment would not be a bar, however, to Plaintiff's section 9149.23 claim against Defendants in their individual capacity.
Finally, Plaintiff brings a claim under Tameny v. Atlantic Richfield Company, 27 Cal. 3d 167 (1980). (Compl. at 7-8.) Tameny held that "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Id. at 170. Because the State Bar, the employer in this action, is immune from suit under the Eleventh Amendment, the Tameny claim is dismissed without prejudice.
Tameny claims require an employer-employee relationship. See Weinbaum v. Goldfarb, Whitman Cohen, 46 Cal. App. 4th 1310, 1315 (1996). "As a matter of law, only an employer can be liable for the tort of wrongful discharge in violation of public policy." Khajavi v. Feather River Anesthesia Med. Group, 84 Cal. App. 4th 32, 53 (2000). See also Reno v. Baird, 18 Cal. 4th 640, 663 (holding that individual supervisors may not be sued under a cause of action for wrongful discharge in violation of public policy). Consequently, the Court assumes that Plaintiff only intended to bring his Tameny claim against the State Bar.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART, as follows:1. All claims, state and federal, against the State Bar are DISMISSED as barred by the Eleventh Amendment, without prejudice to refiling in state court;
2. All federal claims against the individual Defendants in their official capacities are DISMISSED as barred by the Eleventh Amendment to the extent Plaintiff seeks an award of damages, without prejudice to refiling in state court;
3. Defendants' motion to dismiss Plaintiff's section 1983 Civil Rights claim for retaliation for the exercise of his First Amendment rights is DENIED to the extent that Plaintiff seeks relief against Defendants in their individual capacities;
4. The section 1983 Civil Rights claim for a denial of Plaintiff's Fourteenth Amendment property interest is DISMISSED without prejudice;
5. All state law claims against individual Defendants in their official capacities are DISMISSED as barred by the Eleventh Amendment and Pennhurst, without prejudice to refiling in state court;
6. Plaintiff's Labor Code section 1102.5 claim and Tameny claim against individual Defendants in their individual capacities are DISMISSED with prejudice;
7. Plaintiff's Government Code section 9149.23 claim against individual Defendants in their individual capacities is DISMISSED with leave to amend to the extent that Plaintiff is able to plead compliance with section 945.4 of the CTCA.
Should Plaintiff decide to replead any dismissed claims cognizable in federal court, he must do so within 20 days of the filing of this Order.
IT IS SO ORDERED.