Defendants argued that these claims were barred by the immunities set forth in Cal. Gov. Code §§ 815.2, 820.2 and 821.6. In opposition to summary judgment, Plaintiff claimed Defendants were missing the point because “Government Code Section 815.6 imposes a mandatory duty on law enforcement agencies to report to designated county child protective services agenciesall reports of suspected child abuse reported to law enforcement.

As discussed in detail below, the County fails to show that these are new contracts with Deloitte or SAP Public Services and that Culver was interested in them at the time they were made. Thus, the Amended Complaint on its face does not overcome the immunities imposed by sections 820.2 and 821.2 that protect his decisions to sign approvals, enter into contracts, or use his discretion to edit a letter. As a result, the Government Code section 1090 claims must fail.

In that case, Los Angeles Police Officers were seeking discretionary immunity from Case 8:07-cv-01012-DOC -MLG Document 15 Filed 01/08/08 Page 22 of 28 Page ID #:26 REPLY TO OPPOSITION RE MOTION TO DISMISS 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 state law claims arising from the Plaintiff’s alleg ed illegal arrest and false imprisonment. The Ninth Circuit h eld that discretionary immunity under California Government Code § 820.2 did not immunize the police officers from liability for negligently conducting an investigation which resul ted in the arrest of the plaintiff. Notably, however, the Cou rt’s language indicates that the officers, regardless of rank, wo uld be immune with regard to their decisions to act.

Under California law, “a public employee is not liable for an injury resulting from his act . . . where the act . . . was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” See Cal. Gov’t Code § 820.2. A “discretionary” act is one that “requires personal deliberation, decision, Case 2:10-cv-09378-CBM -MAN Document 30 Filed 04/18/11 Page 14 of 26 Page ID #:1087 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 REPLY TO MOTION TO DISMISS CASE NO. 10-cv-09378 CBM (MANx) 552600.

2. “FEHA does not abrogate section 820.2’s specific grant of immunity to public employees for their discretionary acts.” Caldwell v. Montoya, 10 Cal. 4th 972, 986 (1995).

Particularly given that the Sheriff could be held liable for complying with an ICE request in certain circumstances, the Sheriff’s decision falls squarely within the discretionary decisions for which discretionary immunity applies. Cal. Gov’t Code § 820.2; see Miranda-Olivares v. Clackamas Co. 2014 WL 1414305 (D. Or. April 11, 2014) (existence of ICE request to detain did not preclude liability for violation of the Fourth Amendment for holding prisoner).

Alejo at 1186. There is no discretion involvedin initiating the investigating and reporting processrelated to child abuse here as in Alejo, and does not involve a basic policy decision, and therefore the immunity of Government Code section 820.2 does not attach. Alejo at 1194.

The County now clearly disagrees with Culver’s decisions to approve these Deliverables and Change Orders, and wishes it had not enlarged the Project budget. But California Government Code sections 820.2 and 821.2 are meant to protect against liability for exactly this kind of after-the-fact second-guessing.

Thus, the Ninth Circuit has looked to how state courts treat state statutory immunities to determine whether they are subject to collateral order review under federal law. Compare Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800 (9th Cir. 2012) (Nevada anti-SLAPP law did not give rise to immediate appeal because it was not immunity from suit, as demonstrated by fact that there was no immediate appeal right in state court) with Liberal v. Estrada, 632 F.3d 1064 (9th Cir. 2011) (relying in part on fact that California permits immediate appeals of denials of immunity under Cal. Gov. Code § 820.2 to find an immunity from suit). B. The Pendency Of The Appeal Divests The Court Of Jurisdiction Even As To Pre-Trial Matters That Are The Subject To The Appeal For the reasons explained above and in the District’s Motion to Stay, the immunities on appeal are immunities from suit, not just from judgment—and where, as here, they turn on questions of law that can be resolved on the pleadings, pretrial matters should be stayed until the immunities have been definitively resolved.

N Document 29 Filed 04/04/11 Page 8 of 38 Page ID #:1043 (9th Cir. Jan. 19, 2011) 13 West v. Keve 541 F. Supp. 534 (D. Del. 1982) .10 Xechem Int '1, Inc. v. Univ. of Tex. 382 F.3d 1324 (Fed. Cir. 2004) 7 State Cases Becerra v. Cray of Santa Cruz 68 Cal. App. 4th 1450 (Cal. Ct. App. 1998) 21 Kabehie v. Zoland 102 Cal. App. 4th 513 (Cal. Ct. App. 2002) 22, 23 Federal Statutes 17 U.S.C. § 106 24 17 U.S.C. § 107 18, 19 17 U.S.C. § 110 17 17 U.S.C. § 1201 ("DMCA") 19, 20 42 U.S.C. § 1983 6 FED R. Civ. P. 8 ..14 FED R. Cw. P. 12(b)(1) • 1 FED R. Civ. P. 12(b)(6) 1 FED R. Civ. P. 15(a)(2) 6 FED R. Cry. P. 56 1 viii PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:10-cv-09378-CBM -MAN Document 29 Filed 04/04/11 Page 9 of 38 Page ID #:1044 State Statutes CAL GOV'T CODE § 820.2 21 Constitutional Provisions U.S. CONST. amend. XI passim U.S. CONST. amend. XIV 4, 5 Other Authorities 2-12 Moore's Federal Practice — Civil §12.34 2 1-1 Nimmer on Copyright § 1.01 [B][1][a][iii] 18 3-12 Nimmer on Copyright § 12.02[B] 11 5A Wright & Miller, Federal Practice and Procedure § 1357 (1990) 16 75 Fed. Reg. 43825 (July 27, 2010) 20 ix PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:10-cv-09378-CBM -MAN Document 29 Filed 04/04/11 Page 10 of 38 Page ID #:1045 Association for Information Media and Equipment ("AIME") and Ambrose Video Publishing, Inc ("AVP" or "Ambrose") (collectively, the "Plaintiffs") respectively submit this Opposition to the Motion to Dismiss Amended Complaint ("Motion") by Defendants, (collectively, the "Defendants").