# Gonzalez v. Board of Trustees of San Diego Community College District

> District Court, S.D. California · May 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10081169

## Case

- **Court:** District Court, S.D. California
- **Decided:** May 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10081169

## How later opinions describe it (automated extraction)

- holding individuals sued in their individual capacity, and 8 not in their official capacity, are not subject to Eleventh Amendment immunity

## Opinion text

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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA

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DAVID BECERRA, et al., Case No. 17-cv-2489-BAS-MDD
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Plaintiffs, ORDER GRANTING MOTION
13 FOR JUDGMENT ON THE
PLEADINGS
14 v.
[ECF No. 35]
15 SAN DIEGO COMMUNITY
COLLEGE DISTRICT, et al.,
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Defendants.
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19 Plaintiffs David Becerra and Antonio Jimenez were Spanish instructors at San
20 Diego City College. (Second Amended Complaint, “SAC,” ECF No. 20, ¶¶ 1, 2.)
21 Defendants Rosalinda Sandoval and Trudy Gerald were Plaintiffs’ supervisors and
22 employees of the San Diego Community College District (“College”). (Id. ¶¶ 6, 7.)
23 The causes of action currently pending before the Court are: Count 1 against the
24 College alleging discrimination against Plaintiffs based on age in that their class
25 schedules were changed to inconvenient times; Count 2 against the College claiming
26 retaliation because Plaintiffs lodged complaints against Sandoval; Count 4 against
27 the College claiming the College failed to prevent harassment, discrimination and
1 of emotional distress.
2 Defendants now move for judgment on the pleadings claiming that all causes
3 of action are barred by the doctrine of sovereign immunity. (ECF No. 35.) Plaintiffs
4 responded to the Motion (ECF No. 44), and Defendants replied (ECF No. 46.) The
5 Court held oral argument telephonically on May 20, 2020. Based on the papers
6 submitted, the oral argument, and for the reasons stated below, the Court GRANTS
7 the Motion.
8 I. PROCEDURAL HISTORY
9 Plaintiffs filed this case in December 2017. (ECF No. 1.) In March 2018, the
10 Court set the matter for hearing on the issue of dismissal for want of prosecution
11 under Rule 4(m) of the Federal Rules of Criminal Procedure because Plaintiffs had
12 failed to serve the Complaint within 90 days of the filing date. (ECF No. 3.)
13 Plaintiffs filed a service of process the next day. (ECF No. 4.)
14 At Defendants’ request, the Court extended time for Defendants to respond to
15 the Complaint. (ECF Nos. 6, 7.) On April 27, 2018, before Defendants responded,
16 Plaintiffs filed a First Amended Complaint (“FAC”). (ECF No. 11.) The claims in
17 the FAC fell into three categories: age discrimination, discrimination based on
18 race/national origin, and retaliation. (Id.)
19 In May 2018, Defendants moved to dismiss the FAC. (ECF No. 16.)
20 Defendants argued that the race/national origin discrimination claims should be
21 dismissed for failure to exhaust administrative remedies. (Id.) The Court agreed and
22 dismissed those claims. (ECF No. 19.) Defendants further moved to dismiss the age
23 discrimination claims and retaliation claims as time barred. (ECF No. 16). The Court
24 agreed in part, but gave Plaintiffs leave to amend if they could allege a continuing
25 violation. (ECF No. 19.)
26 On October 15, 2018, Plaintiffs filed a Second Amended Complaint (“SAC”).
27 (ECF No. 20.) On November 2, 2018, Defendants brought a second motion to
1 barred except those involving the allegations that the College had changed Plaintiffs’
2 class schedules. (ECF No. 26.) The Court further denied the motion to dismiss to
3 the extent it argued the allegations were insufficient with respect to the claims of
4 retaliation, failure to prevent harassment/discrimination/retaliation, and intentional
5 infliction of emotional distress. (Id.)
6 On June 3, 2019, Defendants filed an Answer. (ECF No. 27.) At the joint
7 request of the parties, the Magistrate Judge continued the case management
8 conference to August 23, 2019. (ECF No. 33.) On August 29, 2019, the Court issued
9 a scheduling order. (ECF No. 34.) The discovery cut-off was set for February 3,
10 2020, and a Motion cut-off was set for March 3, 2020. (Id.) On November 19, 2019,
11 Defendants filed this Motion for Judgment on the Pleadings pursuant to Federal Rule
12 of Civil Procedure 12(c).
13 II. LEGAL STANDARD
14 “The principal difference between motions filed pursuant to Rule 12(b) and
15 12(c) is the time of filing. Because the motions are functionally identical, the same
16 standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c)
17 analog.” Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
18 In a Rule 12(b)(1) motion to dismiss, the party asserting subject matter
19 jurisdiction has the burden of showing that subject matter jurisdiction exists. Pistor
20 v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015). “When a district court is presented
21 with a challenge to its subject matter jurisdiction, no presumptive truthfulness
22 attaches to a plaintiff’s allegations. In resolving such a motion, a district court may
23 . . . resolve factual disputes where necessary.” Id. (citations omitted).
24 III. ANALYSIS
25 “The Eleventh Amendment bars suits which seek either damages or injunctive
26 relief against a state, an arm of the state, its instrumentalities, or its agencies.”
27 Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995). “California state colleges
1 to this sovereign immunity. Mitchell v. Los Angeles Cmty. Coll. Dist., 861 F.2d 198,
2 201 (9th Cir. 1988) (citation omitted). Further, “community college districts are
3 dependent instrumentalities of the State of California.” Cerrato v. San Francisco
4 Cmty. Coll. Dist., 26 F.3d 968, 972 (9th Cir. 1994). Similarly, individuals working
5 for the colleges or universities who are sued in their official capacities share the
6 college district’s Eleventh Amendment immunity. Mitchell, 861 F.2d at 201; but see
7 Cerrato, 26 F.3d at 972 (holding individuals sued in their individual capacity, and
8 not in their official capacity, are not subject to Eleventh Amendment immunity).
9 Plaintiffs do not contest Defendants’ assertion that the Defendants in this case
10 are subject to immunity under the Eleventh Amendment. (ECF No. 44.) The
11 community college district at issue is an instrumentality of the state, and the two
12 individuals are being sued in their official, not their individual, capacities. (See SAC
13 ¶¶ 6, 7.)
14 Instead, Plaintiffs argue (1) “the fact that this Court accepted to try their case
15 as filed and has been considering it for over two years nullifies the Defendants’
16 argument about jurisdiction” and (2) the State has given implied consent to the
17 assumption of jurisdiction because Defendants failed to object to jurisdiction in a
18 timely manner. (ECF No. 44 at 2.)
19 “A sovereign’s immunity may be waived” and “a State may consent to suit
20 against it in federal court.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
21 89, 99 (1984). The Supreme Court has held “that the State’s consent [must] be
22 unequivocally expressed.” Id. The Ninth Circuit, however, has clarified that a State
23 may waive sovereign immunity by conduct incompatible with the intent to preserve
24 that immunity. Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995). So, for
25 example, a State’s removal of a suit to federal court may constitute a waiver of
26 Eleventh Amendment immunity. Lapides v. Bd. of Regents Univ. Sys. of Ga., 535
27 U.S. 613 (2002). Or a State may “accept federal funds where the funding statute
1 consent to waive its constitutional immunity.” Clark v. State of California, 123 F.3d
2 1267, 1271 (9th Cir. 1997) (citation omitted).
3 In Hill v. Blind Industries and Services of Maryland, 179 F.3d 754, 760 (9th
4 Cir. 1999), the court explained that the “Eleventh Amendment is not a true limitation
5 upon the court’s subject matter jurisdiction, but rather a personal privilege that the
6 state may waive.” See also In re Bliemeister, 296 F.3d 858, 861 (9th Cir. 2002)
7 (“Sovereign immunity is quasi-jurisdictional in nature. It may be forfeited where the
8 state fails to assert it . . . .”). A state may waive its Eleventh Amendment immunity
9 by failing to raise it in a timely manner, resulting in “conduct that is incompatible
10 with an intent to preserve that immunity.” Id. (quoting Hill, 296 F.3d at 758.)
11 In Hill, the defendant waited to raise the issue of sovereign immunity until the
12 opening day of trial. The court found “[b]y waiting until the first day of trial,
13 [defendant] hedged its bet on the trial’s outcome.” Hill, 179 F.3d at 756. By pushing
14 it off until the last minute, the trial court was forced to proceed with the trial, allowing
15 defendant to have “the best of both worlds. If [defendant] prevailed at trial, it could
16 withdraw its motion and let the jury verdict stand. If [defendant] lost at trial, it could
17 ask to have the verdict set aside on the ground that the action was barred by the
18 Eleventh Amendment.” Id. Ultimately, the court concluded “[s]uch conduct
19 undermines the integrity of the judicial system. It also wastes judicial resources,
20 burdens jurors and witnesses and imposes substantial costs upon the litigants.” Id.
21 at 757.
22 Even if a defendant does not wait for the first day of trial but waits for
23 substantive motions to be decided before raising the issue of sovereign immunity,
24 “the integrity of the judicial process” can be undermined. Id. “The ruling on a
25 motion for summary judgment or on pre-trial matters such as motions in limine can
26 signal the probable outcome of the case.” Id. Thus, a failure to raise the Eleventh
27 Amendment defense may waive the immunity with such “conduct that is
1 Similarly, in In re Bliemeister, the Ninth Circuit found that the defendant had
2 waived the sovereign immunity defense by not raising it in a timely fashion. 296
3 F.3d at 862. The defendant did not raise the immunity defense when it first filed its
4 motion for summary judgment. Instead, it waited until it had the opportunity to argue
5 the merits of the case at the summary judgment hearing. At that hearing, the court
6 announced its preliminary findings but requested supplemental briefings on the issue.
7 The defendant filed a motion to dismiss based on sovereign immunity at the same
8 time it filed the supplemental briefings.
9 The Ninth Circuit found the delay in asserting immunity was “clearly a tactical
10 decision.” Id. The state benefited from hearing the trial court’s preliminary findings.
11 “To allow a state to assert sovereign immunity after listening to a court’s substantive
12 comments on the merits of a case would give the state an unfair advantage when
13 litigating suits.” Id.
14 To the contrary in this case, the case is still very much in the preliminary
15 stages. Defendants have filed two motions to dismiss, but those were focused
16 primarily on the statute of limitations and failure to exhaust administrative remedies.
17 When those arguments were only partially successful, Defendants now bring this
18 motion to dismiss based on sovereign immunity.
19 Although the case has been pending for two years, Defendants’ answer was
20 not filed until June 3, 2019. (ECF No. 27). Five months later, on November 19,
21 2019, Defendants filed this Motion for Judgment on the Pleadings. There have been
22 no substantive motions signaling the probable outcome of the case.
23 The Court can find no conduct in this case that is incompatible with the State’s
24 intent to preserve the immunity. There are no tactical reasons that the Court can
25 ascertain for the Defendants not to have filed the Motion sooner. Therefore, the
26 Court finds the Defendants have not waived their right to assert sovereign immunity.
27 The Eleventh Amendment bars this suit against the College, which is an
| ||in their official capacities. Hence, the Court GRANTS the Motion for Judgment on
2 □□ □□□ Pleadings on this ground and declines to address Defendants’ other arguments as
3 || moot.
4 ||IV. CONCLUSION
5 For the foregoing reasons, the Court GRANTS the Motion for Judgment on
6 ||the Pleadings. (ECF No. 35). The case is dismissed, and the Clerk is directed to
7 || close the case.
8 IT IS SO ORDERED. /\
9 || DATED: May 20, 2020 LY nLlg (Lashaak
10 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10081169. Public record. Not legal advice.