Opinion
No. 14-cv-00035 JAM-EFB
07-30-2014
MONTY R. STANLEY, individually and doing business as NORTH WEST SURFACING, Plaintiff, v. BOBO CONSTRUCTION, INC., a California corporation; CITY OF ELK GROVE, and DOES 1 through 50, inclusive, Defendants.
ORDER GRANTING THE CITY OF ELK GROVE"S MOTION TO DISMISS
This matter is before the Court on Defendant City of Elk Grove's (the "City") Motion to Dismiss Plaintiff's Second Amended Complaint ("SAC") (Doc. #21). Plaintiff Monty R. Stanley, individually and doing business as North West Surfacing, ("Plaintiff") opposes the motion (Doc. #23) and the City replied (Doc. #26). For the reasons set forth below, the City's Motion to Dismiss Plaintiff's SAC is granted.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for June 18, 2014.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff originally filed this action on September 9, 2013, in Sacramento County Superior Court (Doc. #1) against Bobo Construction, Inc., ("BCI") and the City (collectively "Defendants"). This action was removed to this Court on January 6, 2014, based on federal question jurisdiction, 28 U.S.C. § 1331. Id. On April 10, 2014, the Court granted BCI's Motion to Dismiss Plaintiff's fifth cause of action with leave to amend and granted the City's Motion to Dismiss Plaintiff's FAC with leave to amend. Order, Doc. #18. On April 28, 2014, Plaintiff filed his SAC, the operative complaint in this case, alleging six causes of action: (1) breach of contract as to BCI; (2) deprivation of Plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983 as to Defendants; (3) common counts against BCI; (4) interference with contractual relations against the City—the Subcontract Between Plaintiff and BCI; (5) interference with contractual relations against Defendants—Contract with Freddis Paving; and (6) interference with prospective economic advantage against Defendants (Doc. #19).
According to the allegations in the SAC, the City awarded BCI a contract for a public works construction project, the Special Waste Collection Center and Disposal Lane Project ("Project") in May 2012. SAC ¶¶ 6-7. In or about May 2012, BCI and Plaintiff entered into a subcontract agreement, under which Plaintiff was to perform demolition work at the Project and haul debris off the Project site. Id. ¶ 8. After commencing work, Plaintiff and his employees encountered contaminants at the Project site. Id. ¶ 9. Defendants denied the presence of the contaminants. Id. ¶ 11.
Beginning in or about August 2012 and continuing through September 21, 2012, the City and BCI discharged him as a subcontractor because he complained about potentially hazardous and toxic contaminants at the Project site and requested that appropriate protective measures be taken. Id. ¶ 19. On August 10, 2012, the City served Plaintiff with a written notice, under California Public Contract Code section 4107 ("Section 4107"), of BCI's request for the City's consent to remove and replace Plaintiff on the Project. Id. ¶ 13. On August 10, 2012, Plaintiff served a written request for a hearing in response to the written notice pursuant to Section 4107. Id. ¶ 14. The hearing was scheduled for August 21, 2012, but was postponed to allow for informal discussions. Id. On September 10, 2012, the parties met to resolve the issue. No further discussions were held. Id.
On or about August 31, 2013, Plaintiff presented a written claim for economic damages to the City. Id. ¶ 17. On or about February 19, 2014, Plaintiff presented an additional written claim for economic damages against City. Id. ¶ 18.
II. OPINION
A. Judicial Notice
The City requests judicial notice of Plaintiff's two government claims dated August 31, 2013, and February 19, 2014. Government Claims, Ex. A-B, Request for Judicial Notice ("RJN"), Doc. #21. Courts may consider extrinsic evidence when the plaintiff's claim depends on the contents of a document and the parties do not dispute the authenticity of the document. See, e.g., Sherman v. Stryker Corp., 2009 WL 2241664, at *2 (C.D. Cal. Mar. 30, 2009) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), and Fed. R. Evid. 201). Here, Plaintiff refers to the government claims in the SAC and Plaintiff does not dispute their authenticity. Accordingly, the Court grants the City's request for judicial notice.
B. Discussion
1. Section 4107
Preliminarily, the City argues that Plaintiff cannot sue it for violation of Section 4107. Plaintiff argues that the Section 4107 allegations are part of his § 1983 claim.
Section 4107 "limits the right of the prime contractor to make substitutions and the discretion of the awarding authority to consent to substitutions" of subcontractors. S. California Acoustics Co. v. C. V. Holder, Inc., 71 Cal.2d 719, 726 (1969). "The consequences of an unauthorized substitution can be severe for the prime contractor: the subcontractor may sue the prime contractor (but not the public entity) for damages." Titan Elec. Corp. v. Los Angeles Unified Sch. Dist., 160 Cal.App.4th 188, 203.
Although the City correctly asserts that Plaintiff may not sue the City for damages under Section 4107, Plaintiff has not alleged any cause of action for breach of Section 4107 against it. As Plaintiff points out, in the SAC, Plaintiff alleges that the City violated his due process rights under the U.S. Constitution while acting under Section 4107 to satisfy the "under the color of law" requirement of § 1983 claims. Further, the City does not request any specific claim be dismissed based on this argument.
2. Intentional Tort Causes of Action
The City argues that Plaintiff's fourth, fifth, and sixth causes of action (collectively "intentional tort claims") fail as a matter of law because the City is immune pursuant to Government Code section 815 ("Section 815") and Plaintiff fails to establish vicarious liability. In the opposition, Plaintiff does not oppose the City's request that the sixth cause of action against the City be dismissed. Opp. at 10.
With respect to the fourth and fifth claims, Plaintiff first argues that the City is vicariously liable for the intentional torts of its employees. Opp. at 5. Although a public entity is not liable for any injury except as provided by statute under Section 815, under Government Code section 815.2 ("Section 815.2"), a public entity may be vicariously liable under respondeat superior for acts or omissions of employees. See Cal. Gov. Code §§ 815; 815.2. "Under the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment." Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 967 (1986). To determine the scope of employment, courts use a two-prong test: whether "the employee's action is (1) either required or incident to his duties or (2) could be reasonably foreseen by the employer in any event." Bailey v. Filco, Inc., 48 Cal.App.4th 1552, 1559 (1996).
The City argues that Plaintiff has failed to specify any employees or actions. However, under Section 815.2, it is not "necessary in every case to identify the particular employee upon whose act the liability of the public entity is predicated. All that will be necessary will be to show that some employee of the public entity tortiously inflicted the injury in the scope of his employment under circumstances where he would be personally liable." Legislative Committee Comments, Cal. Gov't Code § 815.2. Even though particular employees do not have to be identified, Plaintiff has failed to provide any specific factual allegations concerning an employee or employees of the City responsible for the alleged tortious acts. Generally, Plaintiff alleges that the City acted "through one or more authorized officers of [the] City charged with the supervision of the construction of the Project," (SAC ¶ 25), but does not allege any underlying actions.
Second, Plaintiff argues that the City is vicariously liable because the City and BCI conspired to commit the underlying tortious acts, citing Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc., 131 Cal.App.4th 802, 823 (2005). In Berg, the court held the civil conspiracy is a "legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration." Id. Further, "it is merely a mechanism for imposing vicarious liability; it is not itself a substantive basis for liability." Id. To establish a conspiracy, "a plaintiff must allege (1) that the defendant had knowledge of and agreed to both the objective and the course of action that resulted in the injury, (2) that there was a wrongful act committed pursuant to that agreement, and (3) that there was resulting damage." Id. (numbering added).
In the reply, the City argues that Berg does not apply in this case because Berg involved a conspiracy between a principal and an agent, not an independent contractor. Reply at 3 n. 1. Nevertheless, assuming that Berg applies, Plaintiff has failed to allege sufficient facts. In the SAC, Plaintiff alleges that the City and BCI conspired to remove him from the Project and induced other parties not to buy construction material from Plaintiff to "eliminate Plaintiff as a source of the complaints regarding the presence of contaminants on the Project." SAC ¶¶ 12-14; 25. However, Plaintiff's conspiracy allegations are legal conclusions. No facts to show the formation or operation of a conspiracy have been alleged. See State ex rel. Metz v. CCC Info. Servs., Inc., 149 Cal.App.4th 402, 419 (2007) (stating that "[i]n order to state a cause of action based upon a conspiracy theory the plaintiff must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it, and the damage resulting from such acts. . . . In making such allegations bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient") (citations omitted).
Therefore, Plaintiff has failed to allege vicarious liability. Because Plaintiff has not indicated any other facts that he may be able to allege to pursue this cause of action, and he has had two opportunities to properly plead these claims, further amendment is futile and these claims are dismissed with prejudice. The Court also does not need to consider the City's remaining arguments on these causes of action.
In its previous Order granting the City's motion to dismiss, the Court held that Plaintiff did not allege any facts to establish that there was a policy as required under Monell. Order at 8-9. The City once again moves to dismiss Plaintiff's second cause of action for violation of 42 U.S.C. § 1983, in part, because Plaintiff failed to allege sufficient facts to establish the requisite elements of a claim under Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978). Plaintiff argues that the City had final policy-making authority to remove him under Section 4107.
To prevail in a civil action against a local governmental entity, a plaintiff must establish "(1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy 'amounts to deliberate indifference' to the plaintiff's constitutional right; and (4) that the policy is the 'moving force behind the constitutional violation.'" Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)). For the second element, a single decision may constitute an act of official government policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). However, "[m]unicipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered." Id. at 481.
In the SAC, Plaintiff alleges that the decision to remove Plaintiff was a deliberate chosen course of action by the City as the "awarding authority" under Section 4107, and therefore, the City is the final decision making authority under Section 4107. SAC ¶ 28. The City argues that Plaintiff has nonetheless failed to identify a final policymaker, citing Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992) . In Gillete, the Ninth Circuit held that the fire chief, who fired the plaintiff, was not a final policymaker because his discretionary authority to hire and fire employees, standing alone, was "not sufficient to establish a basis for municipal liability." Id. at 1350. The court also noted the fact that the "City Charter and ordinances grant authority to make City employment policy only to the City Manager and the City Council." Id. Without evidence that the fire chief made policy, the court found he was not a final policymaker. Id.
In this case, Plaintiff has not identified any individual actors; at most, Plaintiff alleges that decision "was made by one or more of its duly authorized officers vested by the City with final decision-making authority to remove and replace Plaintiff." SAC ¶ 28. Although there is no requirement that a decisionmaker be identified by name, sufficient facts must be alleged to allow the Court to determine whether the official or officials responsible for establishing final policy made a deliberate choice to follow a course of action among various alternatives. Gillette, 979 F.2d at 1347. Because the allegations are conclusory and lack concise factual allegations describing the events that underlie Plaintiff's claim, his claim is deficient. See SAC ¶¶ 25-28.
Accordingly, the Court dismisses Plaintiff's § 1983 claim against the City. Because Plaintiff has had two opportunities to allege a Monell claim, the Court does not grant leave to amend. Furthermore, the Court need not address the City's remaining arguments on this claim.
III. ORDER
For the reasons set forth above, the Court GRANTS the City's Motion to Dismiss Plaintiff's SAC without leave to amend. This case will proceed against the remaining Defendant.
IT IS SO ORDERED. Dated: July 30, 2014
/s/_________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE