Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Ct. No. YC052333. Lois Anderson Smaltz, Judge.
Goldwasser & Glave and Corey W. Glave for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Mark H. Meyerhoff and Jennifer M. Rosner for Defendants and Respondents.
DOI TODD, Acting P. J.
Plaintiff and appellant Jamie Ramirez appeals from an order of dismissal entered following the trial court’s sustaining a demurrer without leave to amend filed by defendants and respondents City of Hermosa Beach, Michael Lavin, Thomas Eckert, Steven Endom, and Thomas Bohlin. The trial court ruled that appellant’s first amended complaint failed to state any cause of action on the basis of allegations that appellant was not promoted by reason of his union activities and was thereafter retaliated against when he indicated he would seek redress for the failure to promote.
We affirm in part and reverse in part. We affirm the trial court’s ruling as it pertains to the second, third and fifth causes of action, but reverse as to the first cause of action alleging a violation of Government Code section 3502.1 and the fourth cause of action alleging a violation of 42 U.S.C. section 1983 against the individual respondents.
FACTUAL AND PROCEDURAL BACKGROUND
On appeal from a judgment of dismissal following a demurrer sustained without leave to amend, we assume the truth of all well pleaded facts, as well as those that are judicially noticeable. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Appellant was a sworn police officer with the City of Hermosa Beach Police Department (Department) and since 2004 had served as the president of the Hermosa Beach Police Officers Association (HBPOA). The HBPOA had been involved in numerous conflicts with the Department and City of Hermosa Beach (City) administrations during the last few years. During that time, appellant actively participated in the HBPOA’s activities and its defense of its members’ rights.
Appellant had been with the Department for 11 years. He spent six years as a traffic investigator, served as the Department’s “DARE” officer and was the Department’s only bilingual officer. In 2005, he completed all phases of the testing process for the position of detective and was ultimately ranked second on the detective list. The officer who was ranked first had been with the Department for three years, was either on light duty or probationary status for two of those years and was not active in or vocal about the HBPOA. When appellant was not selected for the detective position, he was told that the other officer “‘was a better fit.’”
Appellant believed that Chief of Police Michael Lavin (Lavin), Police Captain Thomas Eckert (Eckert), Police Sergeant Steve Endom (Endom) and Police Lieutenant Thomas Bohlin (Bohlin) conspired to ensure that appellant was not selected for the detective position. He further believed that Eckert, Endom and Bohlin rejected him for the detective position because of his active involvement in the HBPOA Board of Directors.
After learning that appellant intended to bring a civil action to remedy his not being selected for the detective position, the Department, the City and individual officers retaliated against appellant in several ways, including: refusing to pay him overtime for work-related calls from police administration conducted while off duty, despite the fact that other employees were regularly paid for such calls; refusing to assign him as a field training officer for a new officer and assigning an officer not on the training list; Eckert’s and Bohlin’s circulating false rumors that he was holding up the HBPOA contract and causing members to lose money; Eckert’s calling the witnesses identified in the complaint appellant filed to address the false rumors; Eckert’s circulating false rumors that appellant had met with Federal Bureau of Investigation (FBI) agents to provide them information about City employees; Bohlin’s initiating a false internal affairs investigation against appellant and failing to disclose the allegations to him; Eckert’s directing officers to tell HBPOA members that appellant’s career was over and that aligning themselves with appellant would be detrimental to their careers and families; the City’s failing and refusing to process grievances appellant filed; newly requiring appellant to submit a request for personal time off to conduct meetings between the HBPOA and police management; Lavin’s refusing to meet with the HBPOA board; Lavin’s, Eckert’s, Endom’s and Bohlin’s initiating false internal investigations and disciplinary action against employees believed to be aligned with appellant and failing to investigate accusations made by those aligned with appellant; and the City’s refusing to investigate appellant’s complaints against Eckert and Bohlin.
On August 1, 2005, appellant presented a government claim against Lavin, Eckert, Endom, Bohlin and the City alleging that they had conspired to prevent him from being selected for the detective position because of his involvement in the HBPOA and that they had retaliated against him after learning that he intended to bring a civil action as a result of not being selected. The City rejected the claim on September 15, 2005.
In December 2005, appellant filed his original complaint against the City, the Department, Lavin, Eckert, Endom and Bohlin (sometimes collectively “respondents”) alleging causes of action for mandamus relief (Gov. Code, § 3500 et seq.), violation of Labor Code section 1102.5 and violation of Title 42 United States Code section 1983. Respondents demurred and moved to strike portions of the complaint.
In March 2006, the parties agreed to forego a hearing and submitted to the trial court’s tentative ruling on the demurrer and motion to strike. The trial court sustained the demurrer in its entirety with leave to amend and, for that reason, did not rule on the motion to strike. It directed appellant to file a first amended complaint no later than March 24, 2006.
On March 27, 2006, appellant filed his first amended complaint (complaint) against respondents, which alleged five causes of action: (1) Mandamus relief (Code Civ. Proc., § 1085; Gov. Code, § 3500 et seq.); (2) violation of statute (Gov. Code, § 3500 et seq.); (3) violation of Labor Code section 1102.5; (4) violation of civil rights (42 U.S.C. § 1983); and (5) municipal liability for violation of civil rights (42 U.S.C. § 1983). Respondents again demurred. In support of their demurrer, respondents sought judicial notice of appellant’s August 2005 government tort claim.
Following a hearing on June 5, 2006, the trial court sustained the demurrer without leave to amend. The trial court found that the complaint was neither timely filed nor cured the deficiencies that were the bases for the demurrer being sustained to the original complaint. More specifically, the trial court ruled that the first cause of action seeking mandamus relief failed to state a cause of action. It reasoned that mandamus may be used to compel a public official to perform an act that is ministerial in nature, but that it could not be used to compel respondents to perform the discretionary act of promoting or granting appellant a specialty assignment. It ruled that the second cause of action failed because it simply realleged the first cause of action, adding a request for damages. The trial court found that the third cause of action for violation of Labor Code section 1102.5 failed for lack of compliance with the Tort Claims Act in that the factual circumstances set forth in the claim did not correspond with those alleged in the complaint. With respect to the fourth cause of action for civil rights violations, the trial court ruled that appellant stated only conclusory allegations of a conspiracy and failed to allege that any of the individual respondents were personally involved in the deprivation of appellant’s civil rights. The fifth cause of action seeking to impose municipal liability for civil rights violations likewise failed because appellant did not plead the existence of a municipal custom or policy which caused his constitutional deprivation.
An order of dismissal was filed on June 7, 2006. This appeal followed.
DISCUSSION
On appeal, we review the trial court’s sustaining of a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) “[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We assume the truth of properly pleaded allegations in the complaint and give the complaint a reasonable interpretation, reading it as a whole and with all its parts in their context. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; People ex rel. Lungren, supra, at p. 300.) However, we may disregard allegations which are contrary to law or to a fact of which judicial notice may be taken. (Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554, 559–560.)
We apply the abuse of discretion standard in reviewing the trial court’s denial of leave to amend. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497–1498.) When a demurrer is sustained without leave to amend, we determine whether there is a reasonable probability that the defect can be cured by amendment. (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1701.) Appellant bears the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (Blank v. Kirwan, supra, at p. 318; Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020.)
We decline to apply this principle to conclude that the trial court properly exercised its discretion in sustaining the demurrer on the ground that appellant’s first amended complaint was filed three days late. (See Code Civ. Proc., § 581, subd. (f)(2).) Though the minute order indicated that untimeliness was an alternative basis for sustaining the demurrer, the appealable order of dismissal did not incorporate this ground, and it therefore fails to reflect any exercise of discretion on the ground of untimeliness.
Applying these standards, we conclude that appellant’s first cause of action stated a viable claim for violation of Government Code section 3502.1. Appellant alleged that he was denied a promotion because of his exercise of lawful activity as a member of the HBPOA, which is precisely the type of conduct that the statute is designed to prohibit. We further conclude that appellant’s fourth cause of action stated a claim under 42 U.S.C. section 1983 against the individual respondents, as appellant adequately alleged the individuals’ personal participation in the deprivation of his constitutional rights. Appellant’s remaining causes of action, however, failed to state any claim for relief, and the trial court properly sustained respondents’ demurrer without leave to amend as to the second, third and fifth causes of action.
I. The Demurrer to Appellant’s Cause of Action Seeking Mandamus Relief Against the City Should Have Been Overruled, as Appellant Alleged a Violation of Government Code Section 3502.1.
In his first and second causes of action, appellant sought mandamus and monetary relief, respectively, for respondents’ violation of the Meyer-Milias-Brown Act, Government Code section 3500 et seq. (MMBA). The trial court ruled that the causes of action failed to state a claim because they were premised on the failure to promote and therefore sought the enforcement of a discretionary, rather a ministerial act. We disagree. The MMBA expressly provides that a public employee shall not be denied a promotion for the exercise of a lawful action as an employee bargaining unit representative. (Gov. Code, § 3502.1.) By alleging that respondents rejected him for the detective position because of his active involvement on the HBPOA Board of Directors, appellant stated a valid cause of action for violation of the MMBA against the City.
A. The Meyer-Milias-Brown Act.
A key purpose of the MMBA is to ensure a public employee’s right to engage in a wide range of union-related activities without fear of sanction. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 555 (Santa Clara County) overruled by statute on other grounds as recognized in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077; Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 388.) “Public employers may not discriminate against their employees on the basis of membership or participation in union activities. [Citations.]” (Santa Clara County, supra, at pp. 555–556.) Accordingly, Government Code section 3506 provides: “Public agencies . . . shall not interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of their rights under Section 3502.” The rights specified by Government Code section 3502 include the right “to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.”
Effective July 1, 2001, Government Code section 3509 vested the California Public Employment Relations Board with exclusive jurisdiction over alleged violations of the MMBA. (Added by Stats. 2000, ch. 901, § 8.) Through the enactment of Government Code section 3511, however, the Legislature exempted peace officers from the jurisdictional limitation. (Gov. Code, § 3511 [“The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999–2000 Regular Session of the Legislature shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code”].)
In 2001, the Legislature amended the MMBA to add Government Code section 3502.1, which states: “No public employee shall be subject to punitive action or denied promotion, or threatened with any such treatment, for the exercise of lawful action as an elected, appointed, or recognized representative of any employee bargaining unit.” (Added by Stats. 2001, ch. 788, § 1 (Assem. Bill No. 1184).) We have not located any judicial decisions interpreting this provision, nor have the parties cited us to any. Under these circumstances, “[w]e must therefore ascertain and effectuate legislative intent. [Citation.] ‘In determining intent, we look first to the language of the statute, giving effect to its “plain meaning.”’ [Citation.] ‘Although we may properly rely on extrinsic aids, we should first turn to the words of the statute to determine the intent of the Legislature.’ [Citation.]” (City of Vernon v. Board of Harbor Comrs. (1998) 63 Cal.App.4th 677, 691.)
On its face, Government Code section 3502.1 bars a public employer from denying a promotion when the denial is based on an employee’s lawful union involvement. (See Mejia v. Reed (2003) 31 Cal.4th 657, 663 [statutory language is generally the most reliable indicator of legislative intent].) Even if there could be any doubt as to the plain meaning of Government Code section 3502.1, legislative history confirms that in amending the MMBA the Legislature intended to clarify the protections afforded to employee bargaining unit representatives. (See, e.g., Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7 [“reports of legislative committee and commissions are part of a statute’s legislative history and may be considered when the meaning of a statute is uncertain”].) The stated purpose of Assembly Bill No. 1184 was “to specifically add to the Public Safety Officers Procedural Bill of Rights Act (POBR) that no public safety officer shall be subject to punitive action, denied promotion, or be threatened with any such treatment because of ‘lawful action as an elected, appointed, or recognized representative of any employee bargaining unit.’” (Sen. Com. on Public Safety, Assem. Bill. No. 1184 (2001–2002 Reg. Sess.) July 3, 2001, p. 2.)
An analysis prepared by the Senate Rules Committee further explained: “Many times, leaders of public safety associations are directed by their employees to make statements or take actions, which may be critical of public safety management in that particular city or county, such as directing a vote of no confidence or addressing issues of collective bargaining and employee rights. Often, these association leaders are punished for their leadership role by being assigned to unwanted shift schedules, unpopular ‘beats,’ and vacation or ‘days off’ changes that many times are opposite of those requested by that officer. However, AB 1184 does not infringe upon these management rights actions. This measure addresses those actions taken by management which go a step further, such as any kind of a punitive action, denied promotion, or threat of any such treatment because of the association leader’s lawful actions as the representative of the bargaining unit.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1184 (2001–2002 Reg. Sess.) as amended July 17, 2001, p. 3; accord, Sen. Com. on Public Safety, bill analysis of Assem. Bill No. 1184 (2001–2002 Reg. Sess.) p. 3; see also Sen. Conc. Amends. to Assem. Bill No. 1184 (2001–2002 Reg. Sess.) p. 2 [“Peace officers in this state are held to a higher standard as individuals and employees than other employees. Their actions as association leaders that are lawful and within the scope of the job as leaders should be protected at the same level as their actions as a peace officer”].)
B. Appellant Alleged a Violation of the Meyer-Milias-Brown Act.
In his first cause of action, appellant sought mandamus relief, citing both the MMBA and Code of Civil Procedure section 1085. Appellant alleged that he was a sworn police officer with the City. He further alleged that he was an active member and president of the HBPOA Board of Directors and had participated in the lawful activities of the HBPOA. Relevant to his cause of action for violation of the MMBA, appellant alleged that respondents “rejected RAMIREZ for the detective position because of his active involvement on the HBPOA Board of Directors” and that by doing so, respondents “violated a ministerial duty to comply with California state law; to wit, to refrain from denying RAMIREZ a promotion/speciality assignment based on the exercise of his right to: (a) participate in the activities of an employee organization; [and] (b) exercise lawful action as an elected, appointed, or recognized representative of any employee bargaining unit . . . .” These allegations fell within the express prohibitions of Government Code section 3502.1, averring that appellant was a “public employee” who was “denied promotion” because of his “exercise of lawful action as an elected, appointed, or recognized representative of any employee bargaining unit.” (Gov. Code, § 3502.1.)
The trial court ruled that the mandamus relief sought by appellant in the first cause of action was not available because the decision to promote is a discretionary act. As explained in Los Angeles County Prof. Peace Officers’ Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 869, a petition for writ of mandate under Code of Civil Procedure section 1085 “seeks to enforce a mandatory and ministerial duty to act on the part of an administrative agency or its officers. Appellants therefore had to show: (1) a clear, present, and usually ministerial duty to act; and (2) that they had a clear, present and beneficial right to have that duty performed. Mandate will not issue if the duty is not plain or is mixed with discretionary power or the exercise of judgment.” (Accord, Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 618 [“Mandate will not issue to compel action unless it is shown the duty to do the thing asked for is plain and unmixed with discretionary power or the exercise of judgment”].)
Compliance with the MMBA is mandatory, not discretionary. The California Supreme Court “ha[s] consistently held that the Legislature intended in the MMBA to impose substantive duties, and confer substantive, enforceable rights, on public employers and employees. [Citations.]” (Santa Clara County, supra, 7 Cal.4th at p. 539; cf. Ball v. City Council (1967) 252 Cal.App.2d 136, 141 [the power to terminate a public employee without cause “may not be exercised arbitrarily in disregard of the employee’s constitutional rights. . . . or statutory rights”].) The Santa Clara County court further held that a writ of mandate was available to the parties to address any asserted violation of the duties imposed by the MMBA. (Santa Clara County, supra, at pp. 540–541.) There, an association of attorneys employed by the county sought mandamus relief to prevent the county from terminating them for filing lawsuits to resolve a salary dispute. The court held: “We construe the MMBA to provide a right to petition for writ of mandate to those employees who fall within its protections, including the Attorneys in the present case.” (Id. at p. 536.) Indeed, opponents of Assembly Bill No. 1184 presciently acknowledged that the legislation would permit the type of action filed by appellant here: “For example, AB 1184 will allow an association board member who might wish to be promoted and/or have a certain designation, who is denied that position, to initiate action based on the fact that the denial was based on their [sic] role with the association.” (Sen. Com. on Public Safety, Assem. Bill No. 1184 (2001–2002 Reg. Sess.) July 10, 2001, p. 9.)
We conclude that appellant’s first cause of action stated a valid claim for mandamus relief against the City and that the demurrer should have been overruled in that regard. (See Santa Clara County, supra, 7 Cal.4th at p. 539.) The trial court properly sustained the demurrer to the first and second causes of action in other respects.
Appellant failed to state a claim for relief against the individual defendants for violation of the MMBA. Nothing in either the language or legislative history of the MMBA indicates that it was intended to impose liability against individuals. (See Gov. Code, § 3500, subdivision (a) [MMBA is designed to promote full communication and improve relations “between employees and the public agencies by which they are employed”]; Service Employees Internat. Union v. Superior Court (2001) 89 Cal.App.4th 1390, 1394 [“In general, labor relations between local government employers and employees are regulated by the Meyers-Milias-Brown Act”].)
Furthermore, appellant’s second cause of action for damages under the MMBA failed to state a claim. Where, as here, a plaintiff attempted to assert a separate cause of action for damages premised on the same facts giving rise to his claims for liability, the court in Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 832, stated: “[P]laintiff confuses a cause of action with damages resulting from a cause of action. ‘Compensatory damages do not constitute a plaintiff’s cause of action. His cause of action arises from the wrong inflicted on him, and for the infliction of that wrong he is allowed an award of such damages.’” (See also Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1475 [“‘Consequential damages cannot support a separate cause of action’”].) Moreover, there was no need for appellant to assert a separate cause of action seeking damages under the MMBA. Should appellant prevail on his first cause of action pursuant to Code of Civil Procedure section 1085, he would be entitled to seek damages from the City pursuant to Code of Civil Procedure section 1095, which provides in relevant part that “[i]f judgment be given for the applicant [in a mandate proceeding under Code of Civil Procedure section 1085], the applicant may recover the damages which the applicant has sustained . . . .” (See Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 326, fn. 27; Apte v. Regents of University of California (1988) 198 Cal.App.3d 1084, 1099–1100.) Accordingly, the trial court properly sustained the demurrer without leave to amend to the second cause of action for damages for violation of the MMBA.
II. The Trial Court Properly Sustained the Demurrer Without Leave to Amend to Appellant’s Cause of Action for Violation of Labor Code Section 1102.5, as the Facts in Appellant’s Government Claim Did Not Correspond With Those in the Complaint.
In sustaining the demurrer to the third cause of action without leave to amend, the trial court ruled that appellant did not comply with the Tort Claims Act (Gov. Code, § 900 et seq.) because the factual circumstances set forth in the claim failed to correspond with the facts alleged in the complaint. We agree that the factual basis for appellant’s cause of action alleging a violation of Labor Code section 1102.5 was not fairly reflected in the claim and that the failure to comply with the claims presentation requirement was fatal to appellant’s third cause of action.
Labor Code section 1102.5, subdivision (b) provides in relevant part: “(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” As the facts showing an alleged violation of this statute, appellant alleged: “Ramirez reported and/or disclosed information to City administrators and/or the Chief of Police that members of the Hermosa Beach Police Department were violating employees’ rights under Government Code § 3300 et seq. and/or Government Code § 3500 et seq. Ramirez is informed and believes, and thereon alleges that Defendants believed that Ramirez was involved in providing information to the Federal Bureau of Investigations concerning possible criminal misconduct by the City Manager and members of the Police Administration.” He sought both monetary damages and equitable relief for the violation.
He further alleged that on or about August 1, 2005, he filed a tort claim giving notice of his claims and the facts on which they were based. According to Government Code section 905, a plaintiff must present a timely government tort claim as a prerequisite to alleging a cause of action “for money or damages against local public entities . . . .” The purpose of the Tort Claims Act is to give the public entity an opportunity to investigate and evaluate its potential liability. (Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 435.) Appellant’s cause of action for retaliation in violation of Labor Code section 1102.5 fell within the scope of the Tort Claims Act, as it was pleaded against a public entity and sought money or damages. (See Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1079 [although the Tort Claims Act does not define the term “money or damages,” the term “is comprehensive in scope and includes tort claims arising out of negligence, nuisance, breach of statutory duties, and intentional wrongs”].)
In his tort claim, appellant alleged that he was not selected for the detective position because of his involvement in the HBPOA and that respondents retaliated against him in numerous ways after being informed that appellant intended to bring a civil action to address his nonselection. The tort claim made no mention of appellant’s reporting and/or disclosing information to City administrators and/or the chief of police that members of the Department were violating employees’ statutory rights.
“[T]he factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint . . . [and] the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.” (Nelson v. State of California (1982) 139 Cal.App.3d 72, 79; accord, Watson v. State of California (1993) 21 Cal.App.4th 836, 843–844; Donohue v. State of California (1986) 178 Cal.App.3d 795, 803.) For example, the court in Watson v. State of California, supra, at page 844 affirmed a demurrer sustained without leave to amend because of the variance between the government claim and the complaint; the government claim was premised on the theory that the State refused to provide any medical care to the plaintiff, whereas the complaint alleged that the State failed to provide appropriate and adequate medical care. Similarly, the court in Donohue v. State of California, supra, at page 804 affirmed a judgment on the pleadings where the claim asserted that the defendant was negligent in permitting an uninsured motorist to take a driving test, but the complaint alleged that the defendant was negligent in failing to instruct, direct and control the motorist during his driving examination. The court reasoned that “[t]he act of permitting an uninsured motorist to take a driving test is not the factual equivalent of the failure to control or direct the motorist in the course of his examination.” (Ibid.)
Here, the facts asserted in appellant’s government claim did not correspond with the facts appellant alleged as the basis for respondents’ liability under Labor Code section 1102.5. Indeed, the claim failed to set forth any facts establishing a basis for liability under Labor Code section 1102.5. It included nothing about appellant’s alleged disclosure of information either to City administrators or the chief of police regarding the Department’s asserted violation of employees’ statutory rights. For this reason, we reject appellant’s contention that the demurrer should have been overruled because he substantially complied with the Tort Claims Act. “The doctrine of substantial compliance does not apply where the claim fails to set forth the factual basis for recovery. [Citation.]” (Watson v. State of California, supra, 21 Cal.App.4th at p. 845; see also Fall River Joint Unified School Dist. v. Superior Court, supra, 206 Cal.App.3d at p. 435 [substantial compliance “argument is unavailing where the plaintiff seeks to impose upon the defendant public entity the obligation to defend a lawsuit based upon a set of facts entirely different from those first noticed”].)
Appellant’s attempt to premise liability on a different factual basis than what was set forth in his government claim was fatal to his third cause of action. The trial court properly sustained the demurrer to that cause of action without leave to amend.
III. The Demurrer to Appellant’s Fourth Cause of Action Should Have Been Overruled, While the Trial Court Properly Sustained the Demurrer Without Leave to Amend to Appellant’s Fifth Cause of Action Alleging a Violation of 42 U.S.C. Section 1983.
Appellant’s fourth and fifth causes of action alleged that the individual respondents and the City, respectively, deprived him of his constitutional rights in violation of 42 U.S.C. section 1983 (section 1983). The demurrer to the fourth cause of action should have been overruled, as appellant pled the requisite facts demonstrating liability on the part of the individual respondents. But the trial court properly sustained the demurrer without leave to amend to the fifth cause of action for municipal liability against the City.
Section 1983 provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”
A. Appellant Adequately Pled the Individual Respondents Personally Participated in the Deprivation of His Constitutional Rights.
In his fourth cause of action, appellant alleged: “The individually named Defendants have discriminated against and retaliated against RAMIREZ in his employment, including but not limited to denial of special assignments, opportunity for promotions, payment of properly earned wages and salary, and/or conducting frivolous internal investigations of Plaintiff due to 1) union association and activities; 2) his exercise of his right to free speech regarding matters of public concern; 3) his political activities on behalf of the [HBPOA]; and 4) his support and involvement in efforts to petition the government for redress of grievances in both city grievance procedures and civil actions filed in court.” He further alleged that Lavin, Eckert, Endom and Bohlin were acting under color of state law or purporting to do so, and that their conduct violated appellant’s right to freedom of speech, association and assembly and the right to seek redress of grievances as provided by the United States Constitution’s First and Fourteenth Amendments. He also realleged the allegations set forth in the preceding paragraphs of his complaint.
A plaintiff alleging a section 1983 claim must “plead that a person deprived him of a right while acting under color of law of any statute, ordinance or regulation, custom, or usage of any state; that the right of which he was deprived was one secured by the Constitution or the law of the United States; and that his loss of life, liberty or property was a deprivation accomplished without due process of law. [Citation.]” (Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 124–125.) “In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation: there is no respondeat superior liability under section 1983. [Citations.]” (Jones v. Williams (9th Cir. 2002) 297 F.3d 930, 934.) Defining the requisite scope of a defendant’s personal involvement, the court in Chuman v. Wright (9th Cir. 1996) 76 F.3d 292, 294, rejected a jury instruction that permitted a finding of liability against an individual defendant to be based on “the result of a ‘team effort.’” The court concluded that a finding of group liability is not permitted without a finding of individual participation in the unlawful conduct. (Id. at pp. 294–295.)
Mindful of the principle that we must liberally construe a complaint’s allegations on an appeal from a demurrer sustained without leave to amend (e.g., Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 842), we conclude that appellant sufficiently alleged each respondent’s personal participation in the deprivation of his constitutional rights. Though appellant did not have any constitutional right to a promotion, the gist of his claim was that he was deprived of the promotion by reason of his HBPOA activities. Under analogous circumstances, where a plaintiff alleged that his employment contract was not renewed because of his public criticism of his employer’s administration, the court in Perry v. Sindermann (1972) 408 U.S. 593, 597 stated that “even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons . . . . [it] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” Thus, in Thomas v. Carpenter (9th Cir. 1989) 881 F.2d 828, 829–830, the court reversed a dismissal, concluding that the plaintiff stated a valid claim under section 1983 where he alleged that he was deprived of certain employment responsibilities and promotional opportunities because of his exercise of free speech. (See also McKinley v. City of Eloy (9th Cir. 1983) 705 F.2d 1110, 1116 [holding that a probationary employee who asserted that he was terminated as a result of his exercise of his first amendment rights stated a cognizable claim under section 1983].)
Here, in the factual allegations supporting all causes of action, appellant alleged “that ECKERT, BOHLIN and ENDOM rejected Ramirez for the detective position because of his active involvement on the HBPOA Board of Directors.” He additionally alleged several specific actions that each respondent undertook in violation of his First and Fourteenth Amendment rights, including that “Eckert began circulating false rumors that Ramirez had met with agents of the Federal Bureau of Investigation and provided them with information regarding employees of the City of Hermosa Beach” and that “Bohlin, with Eckert and Lavin’s approval, initiated false internal affairs investigation(s) against Ramirez and failed to disclose to him the nature of the allegations against him.” Liberally construed, these allegations established each individual respondent’s personal participation in the deprivation of appellant’s civil rights. Appellant’s allegations are unlike those in Ivey v. Board of Regents of University of Alaska (9th Cir. 1982) 673 F.2d 266, 268, where the court affirmed the granting of a motion to dismiss “[b]ecause appellant’s allegations were not supported by reference to any specific actions, practices, or policies of the . . . defendants.”
In view of the complaint’s allegations detailing the specific conduct by individual respondents that allegedly deprived appellant of his constitutional rights, we cannot agree with the trial court’s conclusion that “[t]he fourth cause of action fails to allege any facts that the individual Defendants were personally involved in the deprivation of Plaintiff’s civil rights.” Accordingly, we must reverse the order sustaining the demurrer as to the fourth cause of action.
B. Appellant Failed to Allege That a Policy, Custom or Practice Caused His Constitutional Deprivation.
Relevant to the fifth cause of action for violation of section 1983 against the City, appellant alleged: “In undertaking the actions against Plaintiff, it is believed, and thereon alleged that the Defendants were acting in decisionmaker roles and who possessed final authority to establish municipal and official Police Department policy with respect to the negative job action, described above, taken against Plaintiff. Defendants are believe[d] to have acted with a deliberate choice as to discriminate and retaliate against active union members, including Plaintiff, when making employment and personnel decisions. [¶] To the extent that any of the named defendants acted on his own, Plaintiff alleges that the Defendants in a policy making role and/or the City of Hermosa Beach ratified the subordinate’s decision and as such is chargeable to the municipality as a final decision and policy. [¶] Defendant CITY’s policies, procedures, customs and practices, described above, encouraged its officers, employees and agents, to believe that the above described actions were permissible and that they could undertake the above described actions, currently and in the future, with impunity. To the extent the CITY accepted, condoned, and failed to correct ECKERT’s, BOHLIN’s, ENDOM’s and LAVIN’s actions, the CITY has ratified their behavior and accepted it as a CITY policy or custom.”
The trial court sustained the City’s demurrer to this cause of action on the grounds that appellant failed to “plead the existence of a municipal custom or policy . . . and an alleged constitutional deprivation” and also that “no specific official custom or policy has been alleged.” The trial court correctly determined that the absence of any allegations demonstrating the existence of a permanent and well-settled policy, custom or practice was fatal to appellant’s fifth cause of action.
While the City cannot be held liable under the theory of respondeat superior for injuries caused by its employees or agents, it may be held responsible for harm caused by its employees carrying out a local government custom or policy. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690, 694 (Monell); accord, Kentucky v. Graham (1985) 473 U.S. 159, 165.) “A plaintiff may demonstrate liability by proving that a city employee committed the alleged violations pursuant to the city’s official policy or custom. [Citations.] Alternatively, a plaintiff may show that, rather than being the product of a general official policy, on a given occasion the conduct was the result of ‘a deliberate choice . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.’ [Citations.] Finally, a plaintiff may show that an official policymaker either delegated policymaking authority to a subordinate or ratified a subordinate’s decision, approving the ‘decision and the basis for it.’ [Citations.]” (Fuller v. City of Oakland, Cal. (9th Cir. 1995) 47 F.3d 1522, 1534; accord, Trevino v. Gates (9th Cir. 1996) 99 F.3d 911, 918.) Appellant here relies on all three theories in an effort to hold the City liable under section 1983.
Where a plaintiff contends that a municipality is liable under section 1983, the plaintiff has the burden of identifying the municipal policy or custom that caused the constitutional injury. (Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1295 (Harman).) In his complaint, appellant did not identify any formal written policy that resulted in his alleged harm. “Absent a formal governmental policy, [appellant] must show a ‘longstanding practice or custom which constitutes the standard operating procedure of the local government entity.’ [Citation.]” (Trevino v. Gates, supra, 99 F.3d at p. 918.) “‘For purposes of § 1983, a “custom” is a legal institution that is permanent and established, but is not authorized by written law. [Citation.] Before a custom can be the basis for a civil rights violation, the custom must be “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”’ [Citations.]” (Harman, supra, at p. 1302.)
Appellant alleged that he was not selected for a specialty assignment because of his involvement with the HBPOA and that respondents retaliated against him after he informed them he intended to bring a civil action because he was not selected. Appellant did not allege that he had suffered this type of conduct throughout his career and did not specify except in conclusory fashion that any other officers were subjected to similar conduct. “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” (Trevino v. Gates, supra, 99 F.3d at p. 918; see also Christie v. Iopa (9th Cir. 1999) 176 F.3d 1231, 1235 [“A single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom”]; Thompson v. City of Los Angeles (9th Cir. 1989) 885 F.2d 1439, 1443–1444 [“Consistent with the commonly understood meaning of custom, proof of random acts or isolated events [is] insufficient to establish custom”].) Appellant’s allegations failed to demonstrate that respondents’ conduct involved the duration, frequency and consistency necessary to show the existence of a policy or custom under section 1983.
Absent a policy or custom causing the plaintiff’s harm, municipal liability may be predicated on a single incident where the person causing the violation has “final policymaking authority.” (St. Louis v. Praprotnik (1988) 485 U.S. 112, 123; Christie v. Iopa, supra, 176 F.3d at p. 1235; Gillette v. Delmore (9th Cir. 1992) 979 F.2d 1342, 1347.) Whether an official has such authority is a question of state law. (St. Louis v. Praprotnik, supra, at p. 123; Christie v. Iopa, supra, at p. 1235.) Final authority to establish municipal policy is not established by showing merely that the individual had the authority to hire and fire. (Gillette v. Delmore, supra, at pp. 1349–1350.) Rather, as explained in Pembaur v. Cincinnati (1986) 475 U.S. 469, 481–483: “Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. [Citation.] The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable.” (Fns. omitted.)
The only individual respondent even potentially possessing final decisionmaking authority was Chief of Police Lavin. (See Los Angeles Police Protective League v. Gates (9th Cir. 1990) 907 F.2d 879, 890 [City of Los Angeles Police Chief has policymaking authority]; but see Gillette v. Delmore, supra, 979 F.2d at pp. 1349–1350 [only city council and city manager have final policymaking authority, while city fire chief does not].) But the complaint conspicuously omitted Lavin from the list of individual respondents who appellant claimed rejected him for the detective position because of appellant’s involvement in the HBPOA. Because appellant failed to allege that his harm was caused by an individual who possessed final policymaking authority, his fifth cause of action cannot be premised on conduct by an official policymaker.
Finally, appellant contends that he stated a valid section 1983 claim against the City because he alleged that final policymakers ratified respondents’ conduct. To show ratification, a plaintiff must prove that the “authorized policymakers approve a subordinate’s decision and the basis for it.” (St. Louis v. Praprotnik, supra, 485 U.S. at p. 127; see Gillette v. Delmore, supra, 979 F.2d at p. 1348 [no ratification where there was “no evidence that the City Manager made a deliberate choice to endorse the Fire Chief’s decision and the basis for it”].) A policymaker’s refusal to overrule a subordinate’s completed act does not constitute approval. (Christie v. Iopa, supra, 176 F.3d at pp. 1239–1240; Weisbuch v. County of Los Angeles (9th Cir. 1997) 119 F.3d 778, 781; Gillette v. Delmore, supra, at p. 1348.)
Here, appellant alleged ratification occurred on the basis of the City’s inaction. He alleged that the City failed to correct and take steps to stop the individual respondents’ conduct. The court in Weisbuch v. County of Los Angeles, supra, 119 F.3d 778 affirmed a dismissal for failure to state a claim under similar circumstances. The plaintiff sought to impose municipal liability against the county on the basis of allegations that the County Board of Supervisors discovered he had been removed from his position as a medical director and refused to overrule the chief of his department and reinstate him. (Id. at p. 781.) Characterizing the plaintiff’s claim as an attempted “end run” around Monell, the court stated: “To hold cities liable under section 1983 whenever policymakers fail to overrule the unconstitutional discretionary acts of subordinates would simply smuggle respondeat superior liability into section 1983.” (Weisbuch v. County of Los Angeles, supra, 119 F.3d at pp. 781–782; see also Kanae v. Hodson (D.Hawaii 2003) 294 F.Supp.2d 1179, 1189 [“The Ninth Circuit appears to require something more than a failure to reprimand to establish a municipal policy or ratification”].) Accordingly, appellant’s fifth cause of action against the City cannot be premised on the City’s inaction and the trial court properly sustained the demurrer to that cause of action.
Furthermore, appellant has not met his burden to show that he could allege facts supporting a cause of action if granted leave to amend. Other than asserting he could identify the City’s custom and policy more succinctly, he has not stated how he could cure the complaint’s deficiencies. The trial court properly exercised its discretion in denying leave to amend. (See, e.g., Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
DISPOSITION
The order of dismissal is reversed as to the first and fourth causes of action. In all other respects, the judgment is affirmed and the matter is remanded. Parties to bear their own costs on appeal.
We concur: ASHMANN-GERST, J., CHAVEZ, J.