if plaintiff does not “specify whether 21 the request is for dismissal with or without prejudice, the matter is left to the discretion of the 22 court.”
How later courts described this case
- if plaintiff does not “specify whether 21 the request is for dismissal with or without prejudice, the matter is left to the discretion of the 22 court.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 Dusty Stahl, No. 2:19-cv-00496-KJM-CKD
12 Plaintiff, ORDER
13 Vv.
14 Robert C. Klotz, et al.,
15 Defendants.
16
17 Plaintiff Dusty Stahl is a former clerk at the Amador County Superior Court. She brings
18 | this whistleblower retaliation action against defendants, who all are Amador County Superior
19 | Court employees, in their individual capacities. Stahl has now filed her second amended
20 | complaint. Defendants move to dismiss Stahl’s third claim under California Government Code
21 | section 8547.13. The court submitted the matter without oral argument. As explained below, the
22 | court grants the motion to dismiss Stahl’s section 8547.13 claim without leave to amend. Stahl
23 | may proceed with her two remaining claims under 42 U.S.C. § 1983, which the court has
24 | addressed in its previous orders.
25 | I. BACKGROUND
26 When she worked as a clerk with Amador County Superior Court, Stahl alleges she
27 | witnessed improprieties that violated the rights of criminal defendants. Second Amended
28 | Complaint (‘SAC’) 15-16, ECF No. 27. Stahl reported these alleged improprieties and
1 believes she was terminated because of her disclosures. Id. ¶¶ 18–27. Stahl filed suit against
2 Amador County Superior Court staff asserting three claims: (1) deprivation of liberty and
3 property interest under 42 U.S.C. § 1983; (2) denial of procedural due process under 42 U.S.C.
4 § 1983; and (3) retaliation for a protected disclosure by a public employee under California
5 Government Code section 8547.13. Id. ¶¶ 28–46.
6 In March 2019, Stahl filed her original complaint in this court. See generally Compl.,
7 ECF No. 1. Defendants moved to dismiss Stahl’s second and third claims under Federal Rule of
8 Civil Procedure 12(b)(6), arguing Stahl did not allege sufficient facts to state a “protected
9 disclosure” under section 8547 and that Stahl’s § 1983 procedural due process claim is not
10 cognizable as a violation of the United States Constitution to the extent it is based on denial of
11 state-law progressive discipline. See Am. Mot. to Dismiss (“First MTD”) at 1–2, ECF No. 5.
12 Defendants also argued Stahl did not allege sufficient facts to establish a due process claim
13 against defendants Harmon and Elmore. See id. at 2. Stahl opposed the motion, see generally
14 Opp’n (“First Opp’n”), ECF No. 7, and defendants replied, see generally Reply (“First Reply”),
15 ECF No. 10. The court granted defendants’ motion to dismiss Stahl’s section 8547 claim and her
16 procedural due process claim to the extent it was based on the denial of progressive discipline
17 under California law. Order (“First Order”) at 15, ECF No. 14. The court denied the motion to
18 dismiss the procedural due process claim against defendants Harmon and Elmore. Id. The court
19 granted Stahl leave to amend her section 8547 claim and to bring a state law claim based on the
20 denial of progressive discipline. See id. at 13–14.
21 In August 2019, Stahl filed her first amended complaint. See generally First Am.
22 Complaint (“FAC”), ECF No. 16. Defendants moved to dismiss Stahl’s third claim in that
23 complaint, which relied on section 8547, arguing she again did not allege sufficient facts to
24 constitute a “protected disclosure” and further, that the claim should be dismissed with prejudice
25 as barred by the doctrines of judicial and quasi-judicial immunity. Mot. to Dismiss (“Second
26 MTD”) at 1–2, ECF No. 17. Stahl opposed the motion, see generally Opp’n (“Second Opp’n”),
27 ECF No. 19, and defendants replied, see generally Reply (“Second Reply”), ECF No. 20. The
28 court granted defendants’ motion to dismiss Stahl’s section 8547 claim for failure to allege a
1 “protected disclosure,” but denied defendants’ motion on the basis of judicial immunity. Order
2 (“Second Order”) at 11, ECF No. 25. The court allowed Stahl a final opportunity to amend her
3 section 8547 claim to “clarify whether and to what extent the alleged improprieties were not
4 publicly known, if she is able to amend while complying fully with Federal Rule of Civil
5 Procedure 11.” Id. at 6.
6 In March 2020, Stahl filed the operative complaint. See generally Second Am. Compl.
7 (“SAC”), ECF No. 27. Defendants now move to dismiss with prejudice Stahl’s third claim under
8 California Government Code section 8547.13, arguing again that Stahl does not allege facts
9 sufficient to establish a “protected disclosure” and that the claim is barred by the doctrines of
10 judicial and quasi-judicial immunity. Mot. to Dismiss (“Third MTD”) at 1–2, ECF No. 30. Stahl
11 opposes the motion, see generally Opp’n (“Third Opp’n”), ECF No. 31, and defendants replied,
12 see generally Reply (“Third Reply”), ECF No. 33. The court addresses defendants’ pending
13 motion to dismiss Stahl’s section 8547.13 claim here.
14 A. Procedural History of Section 8547 Claim
15 In her original complaint, Stahl alleged she reported a series of improprieties, including
16 the judge’s failure to advise defendants of their rights, sentencing criminal defendants over the
17 phone without an attorney present, and altering a defendant’s probation order after defendant had
18 signed. Compl. ¶¶ 15–16. In response, defendants argued Stahl did not allege a “protected
19 disclosure” of hidden or unknown facts as required by section 8547. First MTD at 1–2. Stahl
20 contended some of the alleged improprieties were omissions, as contrasted to actions, and
21 therefore “would not generally be known to the public.” First Opp’n at 1. As the court
22 previously noted at hearing on the first motion to dismiss, Stahl’s counsel argued certain errors,
23 such as the clerks’ creating inaccurate minute orders, either did not occur on the public record or
24 were only apparent, if at all, to the court, criminal defendants, prosecutor and defense attorney.
25 See First Order at 10. He also said members of the public would have to “either [be] present in
26 the courtroom or [scour] the record” to learn of the errors. Id.
27 In resolving the first motion to dismiss, the court reasoned that while plaintiff’s argument
28 might have merit, Stahl “d[id] not allege the extent to which the purported improprieties in this
1 case did not appear in the record or were otherwise not publicly known.” Id. Because the alleged
2 improprieties took place in an “open courtroom during official court proceedings on the record,”
3 the court determined they did not qualify as protected disclosures under section 8547. Id. The
4 court granted defendants’ motion to dismiss Stahl’s section 8547 claim, but with leave to amend.
5 Id. at 15.
6 Stahl timely filed her first amended complaint, removing references to alleged
7 improprieties that occurred in open court. See FAC ¶ 15. The amended allegation read:
8 Plaintiff noticed other clerks checking all of the boxes in minute
9 orders, indicating legal rights had been given; however, Plaintiff
10 personally observed that the Judge had not given all of the rights
11 checked by the clerks; therefore, the minute orders were not
12 accurate as to what actually happened on the record. (In clear
13 violation of the mandate reflected in People v. Zackery,1 supra).
14 Id. Defendants filed a second motion to dismiss, arguing Stahl continued to allege only publicly
15 known information and therefore had not pled a section 8547 claim. Second MTD at 1–2. At
16 hearing, Stahl argued the alleged improprieties taking place in the courtroom would not have been
17 known to the public “due to the falsification of minute orders.” See Second Order at 6.
18 In resolving the second motion to dismiss, the court held the amended allegation was
19 insufficient to state a plausible claim that those improprieties were part of the public record. As
20 noted, the court again dismissed Stahl’s section 8547 claim, granting one final opportunity to
21 amend. Id. The court noted in any amended complaint Stahl would need to “supply further detail
22 about the falsification or modification of the public record,” specifically clarifying “whether and
23 to what extent the allege improprieties were not publicly known.” Id.
24 /////
25 /////
26 /////
1 In People v. Zackery, 147 Cal. App. 4th 380, 385–90 (2007), the Third District Court of Appeal
held a court clerk’s minute orders and judgment abstracts must conform to the oral
pronouncement given by the judge to the criminal defendant. If they do not conform, the minutes
must be corrected and the oral pronouncement controls. Id. at 385–86.
1 B. New Allegations in Operative Complaint
2 In March 2020, Stahl filed the operative complaint, adding the following allegations about
3 falsification of minute orders:
4 The “protected activity” in which Plaintiff engaged, under California Government
5 Code Section 8547.2 et. seq., consisted of complaints by Plaintiff to her supervisor,
6 Dana Elmore; and, Court Executive Officer Robert Klotz, about other Court Clerks,
7 Amee Trotter, Jana Giron.[sic] and Dixarea Epsey. These Clerks, while working in
8 the subject Judge’s Courtroom, habitually checked all of the boxes in Minute Orders
9 during Criminal [sic] cases, indicating that the Judge in question had orally advised
10 each criminal defendant of his or her Constitutional rights, to which those criminal
11 defendants were entitled. In fact, all Constitutional rights of those criminal
12 defendants had not been given. Plaintiff personally observed these
13 misrepresentations by Court Administrative personnel from approximately January
14 of 2017 to May of 2017. The facts and circumstances leading to the protected
15 activity in which Plaintiff engaged, were not readily known to the public; and, not
16 easily ascertainable by reviewing the Court record, because these acts constituted
17 intentional concealment of the true facts. The boxes in the Minute Orders that were
18 checked, were checked fraudulently; therefore, a review of the public record would
19 not alert the public of the true facts, which were that the criminal defendants were
20 not given all of their constitutional rights. These misrepresentations, by certain
21 Court Clerks, in the Minute Orders would not be ascertainable, without someone
22 conducting a minimal investigation into the facts and circumstances surrounding
23 each criminal case, to determine if each criminal defendant was given all of his or
24 her constitutional rights by the judge in question. While the facts and circumstances
25 leading to Plaintiff’s disclosures to Dana Elmore and Robert Klotz may not have
26 involved subject matter that was completely secretive, the subject matter involved
27 was not in the “public domain,” as that term is discussed in the case of Mize-
28 Kurzman v. Marine [sic] Community College District, (2002) [sic] Cal.App.4th 832
29 (2012).
30 SAC ¶ 41 (emphasis in original). Otherwise, the complaint remains unchanged.
31 Defendants move to dismiss Stahl’s section 8547 claim as currently pled, arguing Stahl
32 still does not allege sufficient facts to show a “protected disclosure” of concealed or hidden
33 information. See Third MTD at 2. The court has carefully reviewed the operative complaint to
34 determine whether Stahl has cured the pleading deficiencies outlined in this court’s previous
35 orders and finds she has not, as explained below.
36 II. LEGAL STANDARD
37 As the court previously has reviewed, under Rule 12(b)(6) of the Federal Rules of Civil
38 Procedure, a party may move to dismiss a complaint for “failure to state a claim upon which relief
1 can be granted.” A court may dismiss “based on the lack of cognizable legal theory or the
2 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police
3 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). The court assumes all factual allegations are true and
4 construes “them in the light most favorable to the nonmoving party.” Steinle v. City & Cty. of
5 San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019). If the complaint’s allegations do not
6 “plausibly give rise to an entitlement to relief,” the motion must be granted. Ashcroft v. Iqbal,
7 556 U.S. 662, 679 (2009).
8 A complaint need contain only a “short and plain statement of the claim showing that the
9 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell Atl.
10 Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned
11 accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal, 556 U.S. at
12 678. In the same vein, conclusory or formulaic recitations elements do not alone suffice. Id.
13 (quoting Twombly, 550 U.S. at 555). This evaluation of plausibility is a context-specific task
14 drawing on “judicial experience and common sense.” Id. at 679.
15 Federal Rule of Civil Procedure 15(a) requires the court “freely grant leave to amend
16 when justice so requires.” However, if there is strong evidence of repeated failure to cure
17 deficiencies in a complaint, the court may decline to grant additional opportunities to amend. See
18 Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013)
19 (“Courts may decline to grant leave to amend only if there is strong evidence of ‘undue delay, bad
20 faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
21 amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
22 the amendment, [or] futility of amendment, etc.’” (quoting Foman v. Davis, 371 U.S. 178, 182
23 (1962))).
24 III. ANALYSIS
25 The California Whistleblower Protection Act prohibits retaliation against state employees
26 who “report waste, fraud, abuse of authority, violation of law, or threat to public health.” Miklosy
27 v. Regents of Univ. of Cal., 44 Cal. 4th 876, 882 (2008) (quoting Cal. Gov’t Code § 8547.1),
28 superseded by statute on other grounds, Act of July 15, 2010, 2010 Cal. Legis. Serv. Ch. 104,
1 § 1. The Act expressly applies to California courts, imposing liability “in an action for damages”
2 on “a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar
3 acts against an employee for having made a protected disclosure.” Cal. Gov’t Code § 8547.13(e).
4 Ultimately, to establish a prima facie case for whistleblower retaliation under section 8547, a
5 plaintiff must show she made a “protected disclosure,” she was “subjected to reprisals or
6 disciplinary action,” and a causal link exists between the two. Manavian v. Dep’t of Justice, 28
7 Cal. App. 5th 1127, 1141 (2018) (citing Cal. Gov’t Code §§ 8547.1, 8547.3).
8 This court previously found the standard applied in Mize-Kurzman v. Marin Community
9 College District, 202 Cal. App.4th 832 (2012) controls the question of what constitutes a
10 “protected disclosure” under section 8547. First Order at 8. Reporting publicly known facts is
11 not a protected disclosure. Mize-Kurzman, 202 Cal. App. 4th at 858–59. In reaching this
12 conclusion, the Mize-Kurzman court relied on the “ordinarily understood meaning” of
13 “disclosure,” which is “to reveal something that is hidden and not known.” Id. at 858.
14 Here, the alleged improprieties on which Stahl relies either were reflected in the public
15 record or occurred during open court proceedings and therefore cannot plausibly support a claim
16 for a “protected disclosure” under section 8547. Reading the allegations in the light most
17 favorable to Stahl, the clerks “habitually checked all of the boxes in the Minute Orders”
18 indicating the judge read criminal defendants their Constitutional rights when in fact the judge
19 had not. SAC ¶ 41. Even if true, each aspect of the purported improprieties—incorrect minute
20 orders and the judge’s having not read defendants their rights—is part of the public record.
21 Minute orders reside on the public court docket and judges conduct proceedings in courtrooms
22 open to the public.2 Stahl acknowledges that with “minimal investigation” a person could
23 determine if the judge properly read defendants their rights and that her factual allegations do not
24 involve subject matter that is “completely secretive.” Id. Because the alleged improprieties are
2 The court also takes judicial notice of the Amador County court’s Local Rule 11.06,
providing for a transcript or electronic recording of court proceedings, and indicating that
transcripts typically are available in criminal proceedings at least. See
http://www.amadorcourt.org/os-courtReporterTranscripts.aspx.
1 captured on the public record, Stahl’s allegations cannot plausibly state a claim of a protected
2 disclosure in light of Mize-Kurzman. Mize-Kurzman, 202 Cal. App. 4th at 858–59.
3 Stahl appears to have modified her pleadings in an effort to overcome Mize-Kurzman, in
4 that she now alleges that while the disclosures may not have been “readily known to the public”
5 and “not easily ascertainable by reviewing the court record,” the acts constituted “intentional
6 concealment of true facts.” See SAC ¶ 41. But the court finds her amended allegations do not
7 acknowledge the standard for a protected disclosure, which as noted above is only protected if it
8 is not “publicly known.” Mize-Kurzman, 202 Cal. App. 4th at 859. Rather, Stahl appears to ask
9 the court to adopt an adjusted standard that turns Mize-Kurzman on its head, without citing any
10 authority in support.
11 Finally, the court previously determined the defendant court clerks’ execution of minute
12 orders and Stahl’s whistleblower claim against court staff, as articulated in the first amended
13 complaint, were not protected by judicial or quasi-judicial immunity. Second Order at 6–11.
14 While defendants did not seek reconsideration of that order, they now renew their arguments
15 regarding judicial and quasi-judicial immunity as an alternative basis to dismiss Stahl’s section
16 8547 claim. Even if the court’s prior order is not law of the case on this issue, this aspect of
17 defendants’ motion is moot in light of the court’s resolution of the merits of dismissal of the
18 section 8547.13 claim above.
19 The court dismisses Stahl’s section 8547 claim without prejudice but without leave to
20 amend. See Hargis v. Foster, 312 F.3d 404 (9th Cir. 2002) (if plaintiff does not “specify whether
21 the request is for dismissal with or without prejudice, the matter is left to the discretion of the
22 court.”)
23 IV. CONCLUSION
24 Defendants’ motion to dismiss Stahl’s section 8547 claim under Federal Rule of Civil
25 Procedure 12(b)(6) is granted without leave to amend. Stahl may proceed with her remaining
26 claims under 42 U.S.C. § 1983. Defendants shall file their answer within twenty-one (21) days.
27 The parties previously stipulated to delay participation in the court’s Voluntary Dispute
28 Resolution Program (“VDRP”) until the initial pleading stage was complete. See ECF No. 29. At
1 this time, the court refers the parties to VDRP and directs the Clerk of Court to serve this order on
2 the court’s ADR coordinator to work with the parties to select a VDRP neutral.
3 This order resolves ECF No. 30.
4 IT IS SO ORDERED.
5 DATED: May 5, 2021.