Richard Ceja v. Beverly Hills Police Department

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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Case No.: 2:22-cv-05884-MEMF-AGR

11 RICHARD CEJA, an individual, FINN O’

MCCLAFFERTY, an individual, BRIAN

12 WEIR, an individual,, ORDER GRANTING IN PART MOTION TO

DISMISS AND GRANTING REQUEST FOR

13 Plaintiffs, JUDICIAL NOTICE [ECF NOS. 51, 54]

14 v.

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16 THE CITY OF BEVERLY HILLS, a California

municipal corporation, THE BEVERLY HILLS

17 POLICE DEPARTMENT, a municipal agency,

CAPT. MARK ROSEN, an individual, CAPT.

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LINCOLN HOSHINO, an individual, CAPT.

19 ELIZABETH ALBANESE, an individual,

CAPT. MAX SUBIN, an individual, SHELLY

20 OVROM, an individual, LT. DAVID HAMEL,

an individual, LT. SHAN DAVIS, an

21 individual, LT. TERRY NUTALL, an

individual, LT. RENATO MORENO, an

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individual, CHIEF DAVID SNOWDEN, an

23 individual, OFFICER ANNE MARIE

LUNSMAN, an individual, LT. KEVIN ORTH,

24 an individual, SGT. DALE DRUMMOND, an

individual, DET. MARK SCHWARTZ, an

25 individual, and DOES ONE through ONE

HUNDRED (1-100),

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Defendants.

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1 Before the Court are a Motion to Dismiss and Request for Judicial Notice filed by

2 Defendants Elizabeth Albanese, Shan Davis, Dale Drummond, Renato Moreno, Terry Nutall, Kevin

3 Orth, Shelley Ovrom, Mark Rosen, Mark Schwartz, Max Subin, The City of Beverly Hills. ECF

4 Nos. 51, 54. For the reasons stated herein, the Court DENIES the Request for Judicial Notice and

5 GRANTS IN PART the Motion to Dismiss.

6 BACKGROUND

7 I. Factual Background1

8 Plaintiffs Richard Ceja (“Ceja”), Finn O’McClafferty (“O’McClafferty”), and Brian Weir

9 (“Weir,” or collectively with Ceja and O’McClafferty, “Plaintiffs”) are individuals residing in

10 California. See SAC ¶¶ 3–5. All three are former employees of the Beverly Hills Police Department

11 (“BHPD”). See id. ¶¶ 3–5.

12 Defendant City of Beverly Hills (“BH”) is a municipal corporation in California. See id. ¶ 6.

13 Defendant BHPD is an agency of BH. See id. ¶ 7. Defendants Mark Rosen (“Rosen”), Lincoln

14 Hoshino (“Hoshino”), Elizabeth Albanese (“Albanese”), Max Subin (“Subin”), Shelly Ovrom

15 (“Ovrom”), Shan Davis (“Davis”), David Hamel (“Hamel”), Terry Nutall (“Nutall”), Ranato Moreno

16 (“Moreno”), David Snowden (“Snowden”), Anne Marie Lunsman (“Lunsman”), Kevin Orth

17 (“Orth”), Dale Drummond (“Drummond”), and Mark Schwartz (“Schwartz”)2 are individuals

18 residing in California. See id. ¶¶ 8–21. All of the Individual Defendants were employees of BH or

19 BHPD during the relevant time period. See id. ¶¶ 8–21.

20 Two different factions have long competed for control of BH and BHPD. See id. ¶ 27. One

21 faction seeks to encourage or tolerate abuses of power by BHPD officers, while the other faction

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1 Unless otherwise indicated, the following factual background is derived from Plaintiffs’ Second Amended

25 Complaint. ECF No. 49 (“SAC”). For the purposes of the Motion to Dismiss, the Court treats these factual

allegations as true, but at this stage of the litigation, the Court makes no finding on the truth of these

26 allegations and is therefore not—at this stage—finding that they are true.

2 The Court will refer to all Defendants (BH, BHPD, Rosen, Hoshino, Albanese, Subin, Ovrom, Davis,

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Hamel, Nutall, Moreno, Snowden, Lunsman, Orth, Drummond, and Schartz) as “Defendants” where

appropriate. The Court will refer to the individuals (Rosen, Hoshino, Albanese, Subin, Ovrom, Davis, Hamel,

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1 seeks to foster conduct consistent with the law inside BHPD. See id. The Individual Defendants are

2 associated with the first group. See id.

3 Plaintiffs were known during their tenure at BHPD for being “by the book” and not tolerating

4 bad behavior. See id. ¶ 28. Starting in or around 2011, Plaintiffs took stands against bad conduct by

5 Lunsman, Orth, Drummond, and Schartz. See id. ¶ 29. In response, the first faction (which seeks to

6 tolerate abuses of power) brought meritless charges of wrongdoing against Plaintiffs. See id. ¶ 30.

7 In 2015, Plaintiffs sued BHPD. See id. ¶ 32. The parties settled the lawsuit. See id. The

8 settlement agreement included a clause that “[t]he City will not take any action in bad faith to

9 interfere with [Plaintiff's] CalPERS3 rights.” See id. The terms of the settlement agreement and other

10 information regarding Plaintiffs, including “the Brady list status of the Plaintiffs and Pitches

11 Protected Information,”4 were known only Plaintiffs, the Defendants in this action, and their

12 respective counsel. See id.

13 Between 2017 and 2019, the second faction (which sought to foster conduct consistent with

14 the law inside BHPD) was in control of BHPD. See id. ¶ 33. Certain members of the other faction

15 (which sought to encourage or tolerate abuses of power by BHPD officers) filed lawsuits against

16 BHPD during this time period. See id. Plaintiffs offered to testify on behalf of the second faction in

17 defense against this litigation and were preparing to do so. See id. In retaliation, Defendants sent

18 CalPERS anonymous tips regarding the language of the previously described settlement agreements

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3 CalPERS is the California Public Employees’ Retirement System. The Court understands the reference to

21 “CalPERS rights” to mean Plaintiffs’ rights to a pension or similar benefits from CalPERS.

4 The Court understands the reference to “Pitches” to be a clerical error and that the Complaint was meant to

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read “Pitchess.” In any event, although the Complaint does not make this explicit, the Court understands “the

Brady list status of the Plaintiffs and Pitches Protected Information” to refer to any files from BHPD that may

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contain descriptions of alleged misconduct or similar information regarding Plaintiffs. See Ass’n for Los

24 Angeles Deputy Sheriffs v. Superior Ct., 447 P.3d 234, 239 (Cal. 2019) (“The so-called Pitchess statutes,

however, restrict a prosecutor’s ability to learn of and disclose certain information regarding law enforcement

25 officers. [citation to Pitchess v. Superior Court, 522 P.2d 305 (Cal. 1974)]. Most notably, [California] Penal

Code section 832.7 renders confidential certain personnel records and records of citizens’ complaints, as well

26 as information ‘obtained from’ those records . . . some law enforcement agencies have created so-called

Brady lists. These lists enumerate officers whom the agencies have identified as having potential exculpatory

27 or impeachment information in their personnel files — evidence which may need to be disclosed to the

defense under Brady [v. Maryland 373 U.S. 83 (1963)] and its progeny.”)

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1 between Plaintiffs and BHPD, and regarding the Brady list status of at least one Plaintiff. See id. The

2 anonymous tips complained of the de facto confidential nature of the settlement agreement and

3 suggested that there was a conspiracy to keep the circumstances of Plaintiffs’ departure from BHPD

4 secret. See id. As a result of these communications, CalPERS determined that Plaintiffs were not

5 eligible for certain benefits, costing Plaintiffs over $5,000,000. See id.

6 Plaintiffs are not certain at this time who sent the anonymous tips to CalPERS. See id. ¶¶ 34–

7 47. Plaintiffs allege, in the alternative, that each of the individual Defendants (Rosen, Hoshino,

8 Albanese, Subin, Ovrom, Davis, Hamel, Nutall, Moreno, Snowden, Lunsman, Orth, Drummond, and

9 Schwartz) “primarily drafted or participated in the drafting of one or more” of the anonymous tips.

10 See id. ¶¶ 34–47. Plaintiffs further allege that Defendants (including BH and BHPD) “conspired to

11 keep secret their respective specific roles in [their] conspiracy to retaliate against the Plaintiffs.” See

12 id. ¶ 48.

13 II. Procedural History

14 Plaintiffs filed suit in this Court on August 18, 2022. See ECF No. 1. Plaintiffs filed a First

15 Amended Complaint5 on March 8, 2023. See ECF No. 40. Plaintiffs filed their SAC on June 6, 2023.

16 See SAC. The SAC asserts one cause of action: a claim under 42 U.S.C. Sections 1983 and 1988 for

17 violations of constitutional free speech rights. See id.

18 Defendants6 filed their Motion to Dismiss on July 6, 2023. ECF No. 51 (“Motion” or

19 “Mot.”). Defendants filed an attorney declaration in support of the Motion (describing meet and

20 confer efforts) and a Request for Judicial Notice with exhibits on July 7, 2023. ECF No. 53

21 (“Stumreiter Declaration”); ECF No. 54 (“RJN”); ECF Nos. 54-1–54-6 (Exhibits to RJN). Plaintiffs

22 filed an Opposition to the Motion on October 26, 2023. ECF No. 55 (“Opposition” or “Opp’n”).

23 Plaintiffs filed an Errata to their Opposition, describing small corrections, on November 9, 2023.

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5 In their Opposition, Plaintiffs noted in a parenthetical that they “ask this Court to take judicial notice” of the

26 Complaint and First Amended Complaint. See Opp’n at 1. The Court finds it unnecessary to take formal

judicial notice of these items as they are already part of the docket in this action, which the Court can

27 reference without taking judicial notice of.

6 BH asserts that it was erroneously sued as both BH and BHPD, and therefore BHPD does not join the

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1 ECF No. 57 (“Opp’n Errata”). Plaintiffs did not oppose Defendants’ Request for Judicial Notice.

2 Defendants filed a Reply in support of the Motion on November 9, 2023. ECF No. 58 (“Reply”).

3 REQUEST FOR JUDICIAL NOTICE (ECF NO. 54)

4 I. Applicable Law

5 A court may judicially notice facts that: “(1) [are] generally known within the trial court’s

6 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy

7 cannot reasonably be questioned.” Fed. R. Evid. 201(b) (“Rule 201”). Under this standard, courts

8 may judicially notice “undisputed matters of public record,” but generally may not notice “disputed

9 facts stated in public records.” Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001),

10 overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir.

11 2002). Once a fact is judicially noticed, the court “must instruct the jury to accept the noticed fact as

12 conclusive.” Fed. R. Evid. 201(f).

13 On a motion to dismiss, courts are generally prohibited from “consider[ing] any material

14 beyond the pleadings.” United States v. Corinthian Colleges, 655 F.3d 984, 998 (9th Cir. 2011)

15 (quoting Lee, 250 F.3d at 688). Courts generally only consider the complaint and other materials

16 “submitted with and attached to the Complaint.” Id. at 999. Documents not attached to the

17 complaint—including documents that might otherwise be subject to judicial notice—may only be

18 considered if: “(1) the complaint refers to the document; (2) the document is central to the plaintiff’s

19 claim; and (3) no party questions the authenticity of the document.” Id. (citing Marder v. Lopez, 450

20 F.3d 445, 448 (9th Cir.2006)). A court considering a motion to dismiss should not take judicial

21 notice of material that cannot be considered for the motion. See Lee, 250 F.3d at 689–90.

22 A Court may take judicial notice of a document and consider it in analyzing a motion to

23 dismiss. See Corinthian Colleges, 655 F.3d at 998. In order to do so, the document must satisfy both

24 the Corinthian Colleges test and the requirements of Rule 201. See id. (first considering whether

25 document was referenced in and central to complaint, and second considering Rule 201). However, a

26 Court may also consider certain documents in deciding a motion to dismiss without taking judicial

27 notice of the documents. See Marder, 450 F.3d at 448 (finding documents may be considered in

28 deciding motion to dismiss, based on a test identical to the one in Corinthian Colleges, without

1 taking judicial notice of the documents). In some circumstances, it may be appropriate to deny a

2 request for judicial notice, avoiding the obligation to instruct the jury on the trust of a document, but

3 nevertheless consider the document as evidence in deciding a motion to dismiss. See id.

4 II. Discussion

5 Defendants request that the Court take judicial notice of five items: (1) O’McClafferty’s

6 Retirement and General Release Agreement, signed July 6, 2015 (ECF No. 54-1); (2) Ceja’s

7 Settlement Agreement and Release of Claims with the City of Beverly Hills, dated Sept. 11, 2015

8 (ECF No. 54-2); (3) Weir’s Settlement Agreement and Release of Claims with City of Beverly Hills,

9 dated May 13, 2016 (ECF No. 54-3); (4) The April 28, 2021, proposed decision issued by

10 Administrative Law Judge Eric Sawyer, California Office of Administrative Hearings (“OAH”), re

11 Industrial Disability Retirement (“IDR”) eligibility of O’McClafferty, Ceja, and Weir, OAH No.

12 2020090244 (ECF No. 54-4); and (5) CalPERS Board of Administration’s adoption of the proposed

13 decision re IDR eligibility of McClafferty, Ceja, and Weir, Case No. 2020-0325 (ECF Nos. 54-5, 54-

14 6). See RJN. Plaintiffs do not object to this request.

15 The Court finds that these documents are not appropriate for judicial notice. The existence of

16 these documents and the facts contained within them are not “generally known within the trial

17 court’s territorial jurisdiction.” See Fed. R. Evid. 201(b). Nor can they be “be accurately and readily

18 determined from sources whose accuracy cannot reasonably be questioned.” See id. These

19 documents are not public records (at least based on the information available to the Court) and the

20 Court cannot verify their accuracy. The documents thus do not meet the requirements of Rule 201.

21 See Fed. R. Evid. 201(b). For this reason, the RJN is DENIED.

22 However, the Court nevertheless finds it appropriate to consider these documents in deciding

23 the Motion. See Marder, 450 F.3d at 448 (finding documents may be considered in deciding motion

24 to dismiss, without taking judicial notice of the documents). The documents at issue meet all

25 requirements of the Corinthian Colleges test. See Corinthian Colleges, 655 F.3d at 998. First, the

26 documents are referenced in the complaint. See id. (first requirement is that “the complaint refers to

27 the document”). The SAC explicitly refences settlements agreements between Plaintiffs and BH,

28 which the Court understands to be the documents at ECF Nos. 54-1, 54-2, and 54-3. See SAC ¶ 32.

1 The Complaint also references a decision by CalPERS to deny certain benefits to Plaintiffs, which

2 the Court understands as a reference to the other two documents at issue. See SAC ¶ 33. These

3 documents are central to the complaint, because the thrust of Plaintiffs’ claim is that Defendants

4 violated and/or undermined the settlement agreements and caused CalPERS’s decision. Corinthian

5 Colleges, 655 F.3d at 998 (second requirement is that “the document is central to the plaintiff’s

6 claim”). Finally, Plaintiffs have not questioned the authenticity of the documents. See id. (third

7 requirement is that “no party questions the authenticity of the document”). The Court therefore finds

8 that it is appropriate to consider these documents in deciding the Motion. This is notwithstanding the

9 denial of the RJN.

10 MOTION TO DISMISS (ECF NO. 51)

11 I. Applicable Law

12 Federal Rule of Civil Procedure 12(b)(6) allows an attack on the pleadings for “failure to

13 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to

14 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

15 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

16 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff

17 pleads factual content that allows the court to draw the reasonable inference that the defendant is

18 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

19 The determination of whether a complaint satisfies the plausibility standard is a “context-

20 specific task that requires the reviewing court to draw on its judicial experience and common sense.”

21 Id. at 679. Generally, a court must accept the factual allegations in the pleadings as true and view

22 them in the light most favorable to the plaintiff. Park v. Thompson, 851 F.3d 910, 918 (9th Cir.

23 2017); Lee, 250 F.3d at 679. But a court is “not bound to accept as true a legal conclusion couched

24 as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

25 As a general rule, leave to amend a dismissed complaint should be freely granted unless it is

26 clear the complaint could not be saved by any amendment. Fed. R. Civ. P. 15(a); Manzarek v. St.

27 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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1 II. Discussion

2 The Court finds that Plaintiffs have adequately stated a claim against the Individual

3 Defendants, but not against BH or BHPD, and therefore the Motion will be GRANTED IN PART.

4 A. The SAC adequately identifies each Individual Defendants’ role in the alleged

conduct.

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6 Defendants’ first argument is that the SAC does not allege how each defendant “personally

7 participated to cause the deprivation of the plaintiff's rights.” See Mot. at 12. This argument fails.

8 A plaintiff bringing a claim under 42 U.S.C. Section 1983 (“Section 1983”) “must plead that

9 each Government-official defendant, through the official’s own individual actions, has violated the

10 Constitution.” Iqbal, 556 U.S. at 676. The SAC meets this standard.

11 The SAC specifically alleges that each Individual Defendant7 “primarily drafted or

12 participated in the drafting of one or more” of the anonymous tips to CalPERS. See id. ¶¶ 34–47.

13 This allegation is sufficiently specific to describe each individual’s actions.8 The allegation is one of

14 fact, not a legal conclusion, and is plausible in context. See Twombly, 550 U.S. at 570. Each

15 Defendant is on notice as to what exactly he or she is alleged to have done. Defendants appear to

16 take issue with the way in which Plaintiffs allege identical conduct as to each Defendant. See Mot. at

17 13. But it is well settled that a plaintiff may plead in the alternative—in other words, a plaintiff may

18 allege that different defendants engaged in the same alleged conduct and use discovery to determine

19 which defendant is actually liable. See McCalden v. California Library Ass’n, 955 F2d 1214, 1219

20 (9th Cir. 1990) (superseded by rule on other grounds as recognized by Harmston v. City & County of

21 San Francisco, 627 F3d 1273, 1279-80 (9th Cir. 2010)). The only limitation is that a plaintiff must

22 plead specific facts that put each Defendant on notice of what he or she is accused of, and these facts

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7 The SAC does not clearly identify BH or BHPD’s role in the alleged anonymous tip. However, Defendants

25 did not raise this argument. The Court will dismiss the claims against BH and BHPD for different reasons as

described below and need not reach the question of whether BH’s or BHPD’s role was described with

26 sufficient specificity.

8 For this section—which analyzes whether the allegations as to each Defendant are sufficiently specific—the

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Court assumes that the alleged conduct would amount to a constitutional violation and analyzes only whether

the Defendants’ actions are described with requisite specificity. Whether the conduct actually amounts to a

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1 must state a plausible claim for relief. See Iqbal, 556 U.S. at 676. The SAC meets this standard. It is

2 useful to consider whether the SAC would pass muster if only one Individual Defendant were

3 accused of making the report as described above. The Court’s view is that this hypothetical SAC

4 would be plainly sufficient, as it would allege a plausible fact and clearly inform the one defendant

5 of what he or she was accused of. Making the same allegation as to multiple defendants does not

6 change the analysis. See McCalden, 955 F2d at 1219. The SAC sufficiently identifies each

7 Defendants’ alleged role, and so the Motion will not be granted on this basis.

8 B. Plaintiffs adequately allege causation.

9 Defendants next argue that Plaintiffs have not alleged that Defendants’ alleged conduct

10 caused Plaintiffs’ injury. See Mot. at 13–15. Defendants argue that CalPERS’s decision is what

11 caused Plaintiffs’ harm. See id. This argument also fails.

12 General tort principles of causation govern Section 1983 claims. See Malley v. Briggs, 475

13 U.S. 335, 344 n.7 (1986) (Section 1983 “should be read against the background of tort liability that

14 makes a man responsible for the natural consequences of his actions.”). If the natural consequence of

15 a government employee’s actions is that another actor deprived a plaintiff of the plaintiff’s civil

16 rights, the government actor may be liable. See id. Thus, for example, an officer who applies for a

17 warrant that leads to other officers making unconstitutional arrests may be held liable for his action

18 in applying for the warrant. See id. at 344–45.

19 “Tort law measures causation by reference to two standards: proximate and but-for cause.”

20 Reynaga Hernandez v. Skinner, 969 F.3d 930, 942 (9th Cir. 2020). “Proximate cause is often

21 explicated in terms of foreseeability or the scope of the risk created by the predicate conduct.” Id.

22 Proximate cause “precludes liability only where the casual link between conduct and result is so

23 attenuated that the consequence is more aptly described as mere fortuity” Id. But-for causation

24 “exists where the alleged injury or result would not have occurred ‘but for’ that conduct. Id.

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1 Here, there is no doubt that Plaintiffs adequately alleged that the anonymous tip was a but-for

2 cause of losing their benefits.9 See SAC ¶ 33. The only question is whether Defendants’ alleged

3 conduct was a proximate cause.

4 The Court finds that, drawing all inferences in favor of Plaintiffs, the alleged anonymous tip

5 was a proximate cause of Plaintiffs losing their benefits. A plausible inference from the Complaint is

6 that whoever made the tip did so with the understanding that the tip would likely cause Plaintiffs to

7 lose benefits, and that the tip-maker intended this result. See SAC ¶ 33. This result was plainly

8 foreseeable, and not a “mere fortuity,” which would be sufficient to satisfy proximate cause. See

9 Reynaga Hernandez, 969 F.3d at 942.

10 Defendants’ arguments otherwise are unavailing. First, Defendants correctly note that

11 CalPERS made the ultimate decision, and that Defendants could not have made it alone. See Mot. at

12 14. But this misses the mark of the inquiry—a Section 1983 defendant may be liable for a decision

13 or action made by others if the defendant undertook conduct where the other decision or action was a

14 natural consequence. See Malley, 475 U.S. at 344 n.7. Second, Defendants argue that the reports

15 made to CalPERS were true. See Mot. at 14. This may be the case, but it is not relevant to the

16 causation inquiry. Whether Defendants’ actions were wrongful is a distinct question from whether

17 the actions caused the harm. Third, Defendants cite Morse v. North Coast Opportunities, Inc., which

18 held that the government cannot be liable for a private actor’s decision unless the decision can be

19 “fairly attributed to the government.” Morse v. N. Coast Opportunities, Inc. 118 F.3d 1338, 1343

20 (9th Cir. 1997). Morse considered facts significantly different than those here, where the government

21 authorized a private actor “to approve firing decisions,” but did not otherwise take any action that

22 made the alleged conduct foreseeable. See id. Here, by contrast, Defendants are not alleged to have

23 simply allowed CalPERS to act—rather, they are alleged to have taken a specific action done with

24 the hope that CalPERS would act in a predictable way in response. See SAC ¶ 33. Finally,

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26 9 The conclusion that the anonymous tip was the but-for cause is further supported by the proposed decision

issued by Administrative Law Judge Eric Sawyer regarding Plaintiffs’ appeal of CalPERS initial decision,

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which CalPERS eventually adopted. See ECF Nos. 54-4, 54-5, 54-6. Judge Sawyer noted at the outset that

PERS made its decisions “after receiving an anonymous ethical complaint, resulting in its investigation.” ECF

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1 Defendants cite Iqbal, which noted that discrimination was not a plausible inference from the fact of

2 an arrest where there was an “obvious alternative explanation.” Iqbal, 556 U.S. at 682. This portion

3 of Iqbal addressed a different issue and has little relevant to causation.

4 In sum, the Court finds that Plaintiffs adequately alleged causation, and so will not grant the

5 Motion on this basis.

6 C. Plaintiffs adequately allege that the anonymous tip was made under color of law.

7 Defendants next argue that Plaintiffs have not alleged that the anonymous tip was made

8 under color of law as required for Section 1983. See Mot. at 15–17. This argument fails as well.

9 For there to be liability under Section 1983, the alleged conduct must have been “committed

10 by a person acting under color of state law.” Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled

11 on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986). “If a government officer does

12 not act within his scope of employment or under color of state law, then that government officer acts

13 as a private citizen,” and there is no liability under Section 1983. Van Ort v. Est. of Stanewich, 92

14 F.3d 831, 835 (9th Cir. 1996). Applying these principles, courts have held, for example, that a

15 district attorney who wrote a blog outside of working hours was not acting under color of law and

16 could not be liable under Section 1983. Naffe v. Frey, 789 F.3d 1030, 1038 (9th Cir. 2015). The

17 court explained that the district attorney’s actions were not “related to his work as a county

18 prosecutor” and that the blog made clear that “although he worked for Los Angeles County, he

19 blogged and Tweeted only in his personal capacity.” See id.

20 Here, a reasonable inference from the facts alleged is that whoever made the anonymous tip

21 was acting within the scope of his or her employment in doing so. First, the information included in

22 the tip was only available to police officers (see SAC ¶ 32), a fact that CalPERS may have

23 understood and used to conclude that the report came from a police officer. That the report came

24 from a police officer would bolster its reliability. Second, there are open questions as to when the tip

25 was made and what it included. It is possible that it was made during working hours, and that it did

26 not state that it was made in the writer’s personal capacity. These are plausible inferences, and if

27 true, they would significantly distinguish from Naffe. See Naffe, 789 F.3d at 1038. Third, another

28 possibility (and plausible inference) is that the tip identified itself as coming from within BHPD,

1 which would suggest it was made under color of law. In sum, Plaintiffs will need to eventually show

2 that the tip was made in a way that meets the color of law standard described above, but at this stage,

3 Plaintiffs have pleaded sufficient facts to support a plausible inference that it was. Plaintiffs’ claim

4 will not be dismissed on this basis.

5 D. The claims against BH and BHPD fail because Plaintiffs have not alleged that the

conduct was pursuant to any policy, custom, or practice.

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7 Defendants’ final argument is that BH and BHPD cannot be liable because Plaintiffs have not

8 alleged that any “official policy, custom, or pattern” caused the claimed constitutional violation. See

9 Mot. at 17–18. Plaintiffs argue in response that the relevant policy is BHPD’s alleged general policy

10 of allowing abuses of power and of implementing subsidiary policies to meet this end. See Opp’n at

11 10, citing SAC ¶ 27. The Court finds that the alleged policy is not sufficiently specific to establish

12 liability against a public entity for the conduct alleged here. The claims against BH and BHPD will

13 therefore be dismissed.

14 To establish Monell liability under Section 1983, a plaintiff must sufficiently allege that: “(1)

15 [he was] deprived of [his] constitutional rights by defendants and their employees acting under color

16 of state law; (2) the defendants have customs or policies which amount to deliberate indifference to

17 [his] constitutional rights; and (3) these policies are the moving force behind the constitutional

18 violations.” Lee, 250 F.3d at 681–82.

19 Here, the sole relevant allegation is the one discussed above—that certain elements within

20 the BHPD seek to allow abuses of power and implement unspecific policies to that effect. See SAC ¶

21 27. This allegation is not sufficiently specific. First, Plaintiffs have neither alleged what the policies

22 or practices are nor alleged any facts (other than one instance of the anonymous tip) that support the

23 notion that the policies exist. Second, it is not clear how these policies were the moving force behind

24 the anonymous tip. Plaintiffs need more detail to hold BH or BHPD liable under Monell.

25 In their Opposition, Plaintiffs describe the policies with some more specificity, as policies

26 “of punishing its current and former police officers when they speak out -- or offer to testify --

27 regarding the departments systematic and endemic violations of law and Constitutional rights.”

28 Opp’n at 10. But the SAC does not allege this. See SAC. The Court need not reach the issue of

1 | whether such an allegation might be sufficient (or whether it is conclusory absent further facts),

2 | because it is simply not contained in the operative complaint.

3 For this reason, the claims against BH and BHPD will be dismissed. This dismissal will be

4 | with leave to amend, as further allegations might state a claim. See Manzarek, 519 F.3d at 1031.

5 CONCLUSION

6 | For the reasons stated herein, the Court ORDERS as follows:

7 1. Defendants Request for Judicial Notice (ECF No. 58) is DENIED, but the Court nevertheless

8 considered the documents that Defendants requested notice of in deciding the Motion to

9 Dismiss.

10 2. Defendants’ Motion to Dismiss (ECF No. 51) is GRANTED IN PART. Plaintiffs’ claim is

1] DISMISSED WITH LEAVE TO AMEND as to BH and BHPD. Plaintiffs’ claim is not

12 dismissed as to the Individual Defendants. (Rosen, Hoshino, Albanese, Subin, Ovrom, Davis,

13 Hamel, Nutall, Moreno, Snowden, Lunsman, Orth, Drummond, and Schartz).

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15 IT IS SO ORDERED.

16 Af

17 Dated: December 1, 2023

18 MAAME EWUSI-MENSAH FRIMPONG

19 United States District Judge

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