Appendix — Rockwood v. O'Connell

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

; Nour

FIE —_

a

94 735s 20 199

OFFICE OF THE CLERK

NO. :

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1993

RICHARD ROCKWOOD,

Petitioner,

Vv.

BRIAN O'CONNELL and SHARON HILL,

Respondents.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT

DIVISION SIx

Patricia J. Barry

25835 Narbonne Ave., Ste 235

Lomita, California 90717

(310) 534-0093

Attorney for Petitioner RICHARD ROCKWOOD

oF TANNA PR VAY AOETEN OS Ne mR CON

TABLE OF CONTENTS FOR APPENDIX

FOR PETITION FOR WRIT OF CERTIORARI

Court of Appeal, Second Appellate

District, Division Six Opinion, filed

April ve 1994, Rockwood Vv.

OSG ha. a Bir SS HE eS 01-35

Supreme Court of the State of

California Order denying Petition for

Review, Rockwood v. O'Connell, filed

WENO 22, ISSE2 Cs KC lorsdtte 386. af: 36

Court of Appeal, Second Appellate

District, Division Six Order Denying

Petition for Rehearing, dated May 2,

1994. e 6 eB OSES 2 CR a av

Judge Bruce Dodds Oral Rulings on

Defendants Hill's and O'Connell's

Motions for Nonsuit and Directed

Verdict, August 11, 1992, Rockwood v.

Ree SS ik es Sb we 38-50

Superior Court Judgment of Nonsuit on

Rockwood v. O'Connell, filed August

oer Seen 6 8 6 Se SS eee es e BRORS

Court of Appeal, Second Appellate

District, Division Six Order Order,

1

. , filed July 27,

Se PUES. Pie SS f OB nere sai. 54-78

Superior Court o Tunc

Order Denying Defendants Hill's and

O'Connell's Motions’ for Summary

Judgment, filed November 18,1991

Seen’ © Stee toe Srmigk, avy 79-82

Court of Appeal, Second Appellate

10.

11.

District, Division Six Order,

Rockwood v. O'Connell, filed November

21, 309820073 «. Leas. Wea

Superior Court Decision and Order on

Motion for Summary Judgment, filed

June 22, 1992 ..-+«+«-e«-«-«e 99-87

Court of Appeal, Second Appellate

district, Division Six, Remittitur

filed October 3, 1990. .... .88

Plaintiff's Second Amended Complaint,

Rockwood Vv. O'Connell, __ filed

November 4, 1988 ...... 89-140

anf ta

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

2d Civ. No. BO70981

c/w No. B0O72207

RICHARD ROCKWOOD,

)

)

Plaintiff and )

: Appellant, ) (Super.ct. No.

) 167608)

) (Santa Barbara

) County)

Vv. )

)

BRIAN O'CONNELL )

and SHARON HILL )

)

)

)

Defendants and

Respondents.

Richard Rockwood (Rockwood) appeals

from the judgment after respondents,

Brian O'Connell (O'Connell) and Sharon

Hill (Hill), successfully moved for

nonsuit and a directed verdict after

Rockwood presented his Case-in-chief.

Respondents filed a separate appeal from

01

the denial of attorney's fees.! We

affirm.

FACTS

Rockwood brought this action under

title 42 United States Code, section

1983, alleging that respondents and

others harassed him and caused him to be

constructively terminated from his

employment with the County of Santa

Barbara (County) in retaliation for his

exercise of free speech regarding misuse

of County assets.

Previously, the trial court

sustained a demurrer to his entire second

amended complaint without leave to amend

1. The parties filed separate appeals

from the judgment and from the order

denying attorney's fees. We have

consolidated these cases.

02

Hota

mba

and entered judgment against him. In a

previous opinion, we-affirmed as to the

County of Santa Barbara and as to many

individual defendants.

As to respondents, who were his job

supervisors, we held that allegations

that they recommended that his job

category be eliminated in retaliation for

his exercise of the right to free speech

were sufficient to state a cause of

action. Public employees cannot be fired

for exercising their First Amendment

rights. (Thompson v. City of Starkville.

Miss. (5th Cir. 1990) 901 F.24a 456,

470.)?

2. This court filed Rockwood v. County

of Santa Barbara, B042448 as a

non-published opinion on July 27, 1990.

03

On remand, the trial court denied

respondents' summary judgment motions.

Attrial, Rockwood established that

respondents knew he testified before the

1984-1985 Grand Jury and that he ran for

a seat on the Board of Supervisors in

early 1986. He also made vague complaints

about Frank Hawthorne, a co-worker.

He introduced evidence regarding

various internal memoranda and meetings

which focused on managerial complaints as

to his job performance and his

recalcitrance to function as requested at

work.

Early in 1987, the County prepared

for a severe budget crisis which required

budget cuts including the permanent

elimination of the vehicle specialist

position Rockwood held. Although the

Board of Supervisors offered Rockwood a

04

Bt AT eT ON 9 Hottrths BARN Ces a cata Ahe ey | A ycched IR

5

roughly equivalent, underfilled position,

Rockwood elected to be laid off. He sued

the County and many others, including

respondents.

At the conclusion of Rockwood's

presentation of his case-in-chief,

respondents successfully moved for

nonsuit and a directed verdict. The trial

court denied Rockwood's motion for new

trial and this appeal ensued.

DISCUSSION

In the previous appeal we held that

"Actions brought under section 1983 are

subject to the statute of limitations for

personal injuries prevailing in the state

where the action is brought. (Wilson v.

Garcia (1985) 471 U.S. 261.) In

California, that time period is one year.

(Code Civ. Proc., § 340, subd. (3).)

Most of the acts alleged here occurred

05

6

outside of the statutory period. Rockwood

argues that he is entitled to maintain a

section 1923 action based on a continuing

pattern of harassment and retaliation

even if some of the acts occurred outside

the statutory period. Because some of

the acts were alleged to have occurred

within the statutory period, there would

seem to be little doubt that [Rockwood

may continue to prosecute this action as

to those acts]. However, under the usual

rule that the statute of limitations

begins to run upon the occurrence of the

last essential element of the cause of

action [citation], a separate limitation

should apply to each act of retaliation,

and we can see no basis for holding that

conduct occurring outside the statutory

period can give rise to a cause of action

under section 1983. Such a holding would

06

ee ee ee ee ee eee .

make a nullity of the concept of

limitations. . . . Thus, even though

Rockwood may be able to plead facts

occurring prior to the statute in an

attempt to show the County adopted

harassment as an official policy, he can

only state a cause of action for conduct

occurring within one year of the filing

of his complaint."

We are bound by the specific

standard elucidated by the United States

Supreme Court for section 1983 suits: a

plaintiff must bring an action under

section 1983 within the statute of

limitations applicable to tort actions

for the recovery of damages for personal

injuries in the state having jurisdiction

over the matter. (Wilson v. Garcia,

Supra, 471 U.S. at pp. 275-276; see also

Goodman v. Lukens Steel Co. (1987) 482

07

U.S. 656, 660-661.) In California, that

statute is Code of Civil Procedure

section 340, subdivision 3 which

specifies a one-year limitation.

The trial court properly followed

our previous holding and limited evidence

of acts of harassment to the one year

preceding August 10, 1987, when Rockwood

filed this suit. (Estate of Baird (1924)

193 Cal. 225, 258.)

Rockwood and several amicus curiae

request this court to reconsider our

previous holding limiting evidence under

the one-year statute of limitations in

light of our opinion in Accardi v.

Superior Court (1993) 17 Cal.App.4th 341,

in which we invoked the continuing

violation doctrine. Accardi is inapposite

to the instant case.

In Accardi, we held that petitioner

08

LOSI Dy

9

"may be able to prove that the employer's

actions in 1989 through 1991 were a

continuation of prior discriminatory

practices... ." (Id. at p. 350.)

Here, the facts actually proffered

at trial establish that respondent never

engaged in actionable discriminatory

practices. Accordingly, there could be no

prior "continuing" acts to which the

evidence presented could relate.

Standard of Review

"A defendant is entitled to a nonsuit if

the trial court determines that, as a

matter of law, the evidence presented by

plaintiff is insufficient to permit a

jury to find in his favor. [Citation. ]}

'In determining whether plaintiff's

evidence is sufficient, the court may not

weigh the evidence or consider the

credibility of witnesses. Instead, the

03

10

evidence most favorable to plaintiff must

be accepted as true and conflicting

evidence must be disregarded. The court

must give "to the plaintiff['s] evidence

all the value to which it is legally

entitled, .. . indulging every

legitimate inference which may be drawn

from the evidence in plaintiff['s}]

favor."' [(Citation.] A mere 'scintilla of

evidence' does not create a conflict for

the jury's resolution; ‘there must be

substantial evidence to create the

necessary conflict.' [Citation.]"

(Emphasis in original.)

"In reviewing a grant of nonsuit, we

are ‘guided by the same rule requiring

evaluation of the evidence in the light

most favorable to the plaintiff.’

[Citation.] We will not sustain the

judgment '"unless interpreting the

11

evidence most favorably to plaintiff's

case and most strongly against the

defendant and resolving all presumptions,

inferences and doubts in favor of the

plaintiff a judgment for the defendant is

required as a matter of law.' (Citation. }

Keeping in mind the foregoing standard of

review, we now turn to the merits."

(Nally v. Grace Community Church (1988)

47 Cal.3d 278, 291.)

Elements Of The Cause Of Action

Title 42 United States Code section

1983 provides, in pertinent part, that

"Every person who, under color of any

statute, ordinance, regulation, custon,

or usage, of any State... subjects, or

causes to be subjected, any citizen of

the United States ... to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

11

12

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress. ..."*

Under section 1983, a public

employee must show that his or her speech

concerns a matter of public interest.

"When [public] employee expression cannot

be fairly considered as relating to any

matter of political, social, or other

concern to the community, government

officials should enjoy wide latitude in

managing their offices, without intrusive

oversight by the judiciary in the name of

the First Amendment. .. ." (Connick v.

Myers (1983) 461 U.S. 138, 146.)

An employee must show "that his

conduct was constitutionally protected,

and that this conduct was a ‘substantial

factor'--or, to put it in other words,

12

13

that it was a ‘motivating factor' in the

[employer's] decision... ." (Mt,

Hea it ° : V. Doyle (1977)

429 U.S. 274, 287; fn. omitted.) ‘If the

employee establishes that his or her

speech involves a matter of public

concern which motivated the employment

decision, the government agency bears the

burden to justify the discharge on

legitimate grounds. (Rankin v. McPherson

(1987) 483 U.S. 378, 388.)

The employer then must show by a

preponderance of the evidence "that it

would have reached the same decision [on

whether to retain the employee) even in

the absence of the protected conduct."

(Mt, Healthy CitY Board of Ed. v. Doyle,

Supra, 429 U.S. at p. 287.) The

employer's burden varies "depending upon

the nature of the employee's expression.

13

14

- -" (Connick v. Myers, supra, 461 U.S.

at p. 150.)

In balancing these concerns, courts

consider the time, manner and place of

the expression, and the context in which

it arose to determine whether the

expression impairs or interferes with the

effective functioning of the office so as

to outweigh the plaintiff's First

Amendment rights. (Rankin v. McPherson,

Supra, 483 U.S. p. 388.)

Courts must strike "'a balance

between the interests of the [employee],

as a citizen, in commenting upon matters

of public concern and the interest of the

State, as an employer, in promoting the

efficiency of the public services it

performs through its employees.'" (Mt.

Healthy City Board of Ed. v. Doyle,

Supra, 429 U.S. at p. 284, quoting

14

hs cereererereeeeeecemeammmmemnniiaiaiaaiaiaiil

15

Pickering v. Board of Education (1968)

391 U.S. 563, 568.) This balance

“requires full consideration of the

government's interest in the effective

and efficient fulfillment of its

responsibilities to the public." (Connick

v. Myers, supra, 461 U.S. at p-.- 150.)

"([W)jhen a public employee speaks not

as a citizen upon matters of public

concern, but instead as an employee upon

matters only of personal interest, absent

the most unusual circumstances, a federal

court is not the appropriate forum in

which to review . .. a personnel

decision taken by a public agency

allegedly in reaction to the employee's

behavior. [Citation.]" ( Id. at p. 147.)

Government has the prerogative to remove

quickly employees whose conduct hinders

efficient operation without fear of

16

reprisals in the form of lawsuits. (Id.

at p. 151.)

In Connick, an Assistant District

Attorney was fired for insubordination

after she circulated a questionnaire

soliciting the views of fellow employees

regarding office transfers, office

morale, the need for a grievance

committee, the level of confidence in

supervisors and whether employees felt

pressured to work in political campaigns.

(Id. at p. 141.) The only matter

remotely concerning the public was the

issue of working in political campaigns.

The Supreme Court held that because the

questionnaire as a whole "touched upon

matters of public concern in only a most

limited sense" the employer need not

"tolerate action which he reasonably

believed would disrupt the office" her

17

discharge "did not offend the First

Amendment." (Id. at p. 154.)

"Whether an employee's speech

addresses a matter of public concern must

be determined by the content, form, and

context of a given statement, as revealed

by the whole record. ..." (Id. at pp.

147-148.) That inquiry is one of law, not

of fact. (Id. at pp. 147-148, see fn. Ve)

Squabbles by an employee over

internal affairs generally do not rise to

the level of constitutionally protected

speech. (Ibid.) Such evidence reflects

that employee's dissatisfaction with the

status quo or with the transfer, demotion

or release from work. (Ibid."

Accepting Rockwood's evidence as

true, could a reasonable jury find

substantial evidence that Rockwood spoke

out about matters of public concern after

18

August 10, 1986 motivating either Hill or

O'Connell to retaliate against him? If

so, did defendants bear the burden of

establishing that they would have reached

the same decision on legitimate business

grounds regardless of his speech." We

have perused the entire transcript to

consider these questions.

In 1980, Rockwood joined County

employment as an Equipment Specialist in

the Public Works Department. On September

3, 1984, Brian O'Connell was appointed

director of the newly-created Department

of General Services to supervise a staff

of approximately 140 people. During

November 1984, Sharon Hill became an

assistant director of General Services

supervising approximately 45 to 50

employees including Rockwood, who was

appointed to the newly-created position

18

19

of Vehicle Specialist in December 1984.

O'Connell and Hill first met Rockwood in

1984.

In May 1984, Rockwood made some

general comments to O'Connell that

another supervisor held Rockwood back

from accomplishing work and that Rockwood

thought that another employee was hard to

control. These comments are outside the

limitations period and are too general to

consider.

Hill reviewed Rockwood's personnel

file and became aware that his former

supervisors in public works may have

reprimanded or disciplined Rockwood for

complaining about the possibility that

two employees might be engaged in a scam

to use County time and parts to repair

private vehicles. Although such

complaints would be actionable protected

19

20

speech, they are barred by the statute of

limitations.

Rockwood complained to the 1984-1985

Grand Jury that county employees had been

misusing County garage and fuel

facilities. Shortly thereafter, an

investigator in the District Attorney's

office called O'Connell to discuss such

allegations. O'Connell was unaware

Rockwood had gone to the Grand Jury, but

he surmised that perhaps Rockwood had

done so because of the juxtaposition of

the general complaints Rockwood had made

to him at the end of 1984 and the call

from the District Attorney's office.

This incident, too, is beyond the reach

of the statute of limitations.

Between May and September 1985, Hill

required Rockwood to report his work

activities regarding this newly-created

20

ee

21

position in a daily log. He presented no

evidence that he complained to her in

these logs about matters of public

importance. He maintains generally that

the request constituted harassment.

Again, the statute of limitations is a

bar to this complaint. Furthermore, it is

undisputed the position evolved over time

and that Hill had a legitimate business

reason to find out what activities the

newly-created position actually entailed.

It therefore is immaterial that Hill

relied in minor part on these early logs

to recommend deletion of the vehicle

specialist position.

Between January and July 1986,

Rockwood ran for the Fifth District

Supervisor's seat. Rockwood did not tell

respondents he was running for office.

Neither Hill nor O'Connell resided in the

21

22

area covered by the district and there is

no substantial evidence that either knew

anything more about his campaign than

that he was running. No retaliation

would be possible under these

circumstances and the statute of

limitations bars action regarding

statements he may have made during the

campaign.

On October 15, 1986, Hill sent

Rockwood a memorandum stating that he is

responsible for problems involving the

transfer of vehicles between departments.

Rockwood denied responsibility. This

does not involve constitutionally

protected speech under Connick.

On October 24, 1986, Hill wrote

Rockwood a memorandum asking him to cease

taking excessive lunch breaks.

Rockwood's direct supervisor, Frank

22

23

Hawthorne, whom he previously supervised,

reported this problem to Hill. He denied

it. Again, this incident does not involve

constitutionally protected speech as a

matter of law.

On November 3, 1986, Hill sent

Rockwood a memorandum expressing concern

that payroll was not receiving his time

cards on time. Hill told Rockwood to

give Hawthorne his time cards to insure

that Rockwood would get paid on time. He

disobeyed this directive and brought the

time cards in himself, presumably because

he did not trust Hawthorne. Again, this

incident is not of public concern.

On the same day, Hill sent Rockwood

another memorandum relaying a complaint

from an assistant director of the public

works department that Rockwood was

improperly using their "road" copying

23

24

machine in Santa Maria. Rockwood asserted

he was being singled out because he and

others knew that he was not the only

person outside of public works using that

machine. There is no substantial

evidence that Hill knew this. Therefore,

her memorandum could not be considered

harassment or retaliation for any

constitutionally protected free speech.

She simply responded to the legitimate

business concern of another supervisor

which was not. a matter of public import.

On November 5, 1989, Rockwood sent

Hill a memorandum complaining that she

failed to help him with an idea to

improve the way fuel cards were used.

Rockwood failed to get these cards in on

a timely basis. Again, this matter does

not constitute, protected speech and there

is no showing she retaliated against him

' 3

25

even though he was admittedly remiss in

this duty.

The purchasing agent for general

services, Jim Belcher, wrote Hill |

regarding Rockwood's failure to provide

proper specifications for the replacement

of County vehicles. On January 6, 1987,

O'Connell, Hill, Rockwood, Belcher and

others met to discuss this matter.

Rockwood disagreed with the views of his

supervisors as to these specifications

and on how long to keep County vehicles

before auctioning them to the public. He

also disagreed about how much money

should be spent to make vehicles for

auction serviceable. Rockwood admitted

that delays occurred when both Rockwood

and Hawthorne had to jointly sign off on

whether to auction vehicles and how to

proceed. Accordingly, on April 6, 1987,

29

26

Hill removed this responsibility from

Rockwood and gave it to Hawthorne.

Rockwood believed the County should

spend only enough money on vehicles for

auction so that people could get them off

the County lot, even if it might leave

them unsafe. Under Connick,

disagreements with the directives of

supervisors regarding such legitimate

business matters are not bases for a 1983

action.

Rockwood wrote Hill and O'Connell

complaining that he saw some alcohol at a

birthday barbecue held during lunch for

an employee. Again, this kind of

complaint simply does not pass muster

with the requirements elucidated in

onnick.

Rockwood asserted that Hill asked

him a few times over the years she

26

27

supervised him " 'Why do you stay? Why

don't you leave? You're not going to

change the system.'" She never

elaborated on these statements and

Rockwood could not place these statements

in the context of any events.

In January 1987, O'Connell asked all

department managers to recommend budget

reductions because the County had a

severe budget crisis. Hill, among other

things, recommended deletion of the

vehicle specialist position held by

Rockwood. Hill and Carl Hopkins, another

assistant director, recommended about

$500,000 in cuts for the next fiscal

year.

Hill indicated that the vehicle

specialist position had turned out to

involve part-time, seasonal activities,

such as vehicle acquisition and auctions

27

28

which could be subsumed under the aegis

of the garage superintendent and others.

O'Connell accepted all of her

recommendations as well as those of his

other assistant director, Carl Hopkins,

and forwarded them to the County

Administrative Officer, David Elbaun.

Elbaum met with O'Connell and discussed

whether there was an unfilled position

Rockwood could take. Elbaum forwarded the

recommendations, which included the

deletions of other positions, to the

Board of Supervisors. The Board

abolished the vehicle specialist position

along with several others. Ultimately,

the Board deleted 30 positions ln the

County.

The Personnel Department determined

that the only position Rockwood could

fill was a shop supervisor position in

28

29

Santa Maria, which was near his home.

The pay was nearly identical to the

vehicle specialist position. The

position, however, required Rockwood to

report to Hawthorne again.

nockwéod was not sure Hill had

recommended the deletion of the position,

but Rockwood knew there was a severe

budget crisis within the County. On June

8, 1987, O'Connell and Hill wrote

Rockwood informing him that the vehicle

specialist position he had held was being

abolished by the Board of Supervisors at

the end of June 1987, due to cuts to the

general fund for the County.

Rockwood complained to the Board

about this and the Board instructed

O'Connell to write Rockwood again about

its decision. Rockwood decided to turn

down the shop supervisor position, and

29

30

accept the lay off.

Our review of the entire record

reveals that Rockwood presented no

substantial evidence upon which a jury

could find that respondents retaliated

against him for his exercise of free

speech or for harassment during the

pertinent period of time.

Attorney's Fees

Hill and O'Connell filed a separate

appeal from the trial court's denial of a

post trial motion for attorney's fees

brought pursuant to title 42 United

States Code section 1988. Rockwood filed

a cross-appeal regarding the award of

costs. We have consolidated this matter

with the initial appeal from the judgment

of nonsuit in this action. Hill and

O'Connell contend that because the trial

court made a finding that the Civil

30

31

Rights action "was completely frivolous"

they are entitled to attorney's fees

under section 1988. (Hughes v. Rowe

(1980) 449 U.S. 5.) Not so.

Title 42 United States Code section

1988 states, in pertinent part, "In any

action . . . to enforce a provision of

sections . .. 1983 .. . of this title .

. . the court, in its discretion, may

allow the prevailing party ...a

reasonable attorney's fee as part of the

costs."

A trial court may award a defendant

attorney's fees in a 1983 case if the

suit is "frivolous, unreasonable, or

without foundation, even though not

brought in subjective bad faith."

(Christiansburg Garment Co. v. EEOC

(1978) 434 U.S. 412, 421--a Title VII

case which was extended to cover section

31

32

1983 actions in Hughes v. Rowe, supra,

449 U.S. at p. 14.)

The Christiansburg court cautioned

trial courts to be circumspect in

awarding attorney's fees to defendants

lest they chill all "but the most

airtight claims ... ." (434 U.S. at p.

422.) Defendants must show that the

action meets these strict standards,

supra, “or that the plaintiff continued

to litigate after" it became undisputable

that there was absolutely no merit

whatsoever to any of the claims made

before a trial court should consider

assessing these fees against a 1983

plaintiff. (Ibid.)

Cases are not “'groundless' or ‘without

foundation'" within the meaning of

section 1988, where the allegations, as

here, "deserved and received the careful

32

33

consideration" of the courts, even if

they are ultimately dismissed for failure

to state a claim requiring trial. (See

Hughes v. Rowe, supra, 449 U.S. at pp.

15-16.)

Thus this matter lies within the

broad discretion of the trial court which

carefully and properly considered the

standards set forth in Christiansburg and

Hughes as applied to the history of this

case. It ruled that although Rockwood's

attorney failed to realize that his )

action was legally and factually ;

insupportable, the County should not

recover attorney's fees. Rockwood

establishes no basis for overturning the

trial court's determination. Accordingly,

we affirm the denial of attorney's fees.

(Perko's EnterPrises, Inc. v. RRNS

Enterprises (1992) 4 Cal.App.4th 238.)

33

34

The judgment is affirmed. Costs to

respondents.

NOT TO BE PUBLISHED.

STONE, P.J.

We concur:

GILBERT, J.

YEGAN. J.

34

35

Bruce M. Dodd, Judge

Superior Court County of Santa Barbara

Patricia J. Barry for Plaintiff and

Appellant.

Stephen Kohn for Amicus Curiae

National Whistleblower's Center on behalf

of Plaintiff and Appellant.

Carol A. Sobel, Jon W. Davidson and

Paul L. Hoffman for Amicus Curiae ACLU

Foundation of Southern California on

behalf of Plaintiff and Appellant.

Joseph Posner for Amicus Curiae

California Employment Lawyers Association

on behalf of Plaintiff and Appellant.

Tardiff & Staton by Neil S. Tardiff

and David Nawi, County Counsel, and David

L. Allen, Sr. Deputy County Counsel for

Defendants and Respondents.

39

Second Appellate District,

Division Six, No. BO70981

S039912

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

RICHARD ROCKWOOD, Appellant

vs.

BRIAN O'CONNELL Et Al., Respondents

Appellant's petition for review DENIED.

LUCAS

Chief Justice

36

OFFICE OF THE CLERK

COURT OF APPEAL

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

JOSEPH A. LANE, CLERK

DIVISION: MAY 2, 1994

BO72207

Patricia J. Barry

25835 Narbonne Ave.

Suite 235

Lomita, CA. 90717

RE: Rockwood, Richard

VS .

O'Connell, Brian

Hill, Sharon

2 Civil BO72207

Santa Barbara No. 167608

THE COURT:

Petition for rehearing denied.

37

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

RICHARD ROCKWOOD,

Plaintiff and

Appellant,

vs. No. 167608

BRIAN O'CONNELL,

et al.,

Defendants and

Respondents.

ee ee ee ee ee ee ee ee eee See

‘

APPEAL FROM THE SUPERIOR COURT

OF SANTA BARBARA COUNTY

HONORABLE BRUCE WM. DODDS, JUDGE

REPORTER'S TRANSCRIPT ON APPEAL

APPEARANCES:

For Plaintiff & Appellant:

PATRICIA J. BARRY

Attorney at Law

25835 Narbonne Ave.,Suite 235

Lomita, CA 90717

For Defendant & Respondent

SHARON HILL: NEIL S. TARDIFF

TARDIFF & STATON

136 West Canon

Perdido, Suite C

38

Santa Barbara, CA

93121

For Defendant & Respondent

BRIAN O'CONNELL: DAVID L. ALLEN

Sr Deputy County

Counsel

County of Santa

Barbara

105 East Anapamu

Street

Santa Barbara, CA

93101

Reported by: JANA B. COOKSEY,

CSR NO. 7399

Official Court Reporter

Superior Courthouse, Dept. 2

Santa Barbara, CA

Volume IV of IV

(Pages 682 through 958, Inclusive)

39

(Brief recess.)

(The following proceedings were held

in open court outside the presence

and hearing of the jury:)

THE COURT: All right.

Now, we have all the jurors out,

we can proceed.

All right. Mr. Tardiff and Mr.

Allen, you've filed a motion for directed

verdict, and motion for nonsuit. I've had

a chance to review the material. I'm

assuming -- I know that you gave a copy of

it to Miss Barry at the same time that you

gave it to me.

Are you ready to proceed at this

time?

MR. TARDIFF: We are, your Honor.

40

THE COURT: All right.

Miss Barry, are you ready to

respond to the motion?

MS. BARRY: As best I can, yes.

THE COURT: All right. |

You wish to be heard on it?

MR. TARDIFF: Yes, your Honor.

This is not your’ typical

nonsuit that I've brought before this

Court on many other occasions where I'm

doing it more for the record than anything

else. This is a motion because nothing in

this case from the beginning of it up

until this point in time of any substance

has been provided to this jury other than

a lot of innuendoes from questions where

answers were never given, and I think

thatthat's why a nonsuit should be granted

in this case.

923

41

The jury needs to know that

these type of cases do not go to them

unless there's been sufficient evidence to

give then, and there hasn't _ been

sufficient evidence. There has been no

evidence of even any nexus between this

alleged speech of Mr. Rockwood, and any

act of Mrs. Hill and Mr. O'Connell, just

absolutely no nexus.

I mean, Judge, do I need to go

through the evidence?

THE COURT: I'm familiar with the

evidence. I reviewed it here, and it

really hasn't been that long a trial.

MR. TARDIFF: Right.

And everything in between,

all the stuff in between has been

innuendos and questions that the jury may

think that that's evidence, and this is a

strong motion for a nonsuit. It's going to

stand up on appeal, and it should be

42

granted.

THE COURT: I'm going to say the same

thing that I did earlier to you, Mr.

Tardiff. It's my belief that this Court

of Appeals that I'm sitting under, and

frankly almost all Court of Appeals takes

a different attitude about motions for

nonsuit, directed verdicts, than if it

goes to the jury.

MR. TARDIFF: I understand that.

THE COURT: Now, as a matter of

policy and a matter of tactics, not as

law, I question whether you're making a

mistake or not. Even assuming that I

granted this, obviously, then, Miss Barry

could take an appeal on it, and

957

43

they did to Mr. Rockwood, in particular

the job abolishment, because of his

exercise of free speech.

THE COURT: All right.

I'm going to grant the motion

for nonsuit for

Mr. O'Connell. It's clear to me that

there is just no evidence that would

support a verdict against Mr. O'Connell

at this point.

Now, with regard to Miss Hill,

I want you to address the Erickson case.

Mr. O'Connell, there's just no

evidence to support any cause of action

against him. No jury could possibly so

find, and reasonable minds would not

differ. The speculation, suspicion,

surmise, guess, conjecture is just not

sufficient, and that's all there is.

44

a

ae

Now, at least with Miss Hill,

there are some, these memos back and

forth. I want you --

MR. TARDIFF: I will address

that case. |

THE COURT: Address that, Mr.

Tardiff.

MR. TARDIFF: Yes. I think that

you and I both are used to reading cases

on a preponderance of the evidence,

negligence standpoint in reading these

nonsuits, and when you read the Erickson

case, and you look at all the different

facts, you say, geez, you know, a

reasonable jury could conclude that maybe

it was retaliatory, because of just the

facts in and of themselves.

The point of Erickson is that

this is not a negligence case. This is a

42 U.S.C. 1983 cause of action

that requires intentional, intentional,

45

intentional conduct. Doesn't require

negligent conduct, and so when you're

946

46

analyzing the facts as to whether it gives

rise to an inference, you have to analyze

them with -- take off your negligence cap

and put on your intentional cap.

THE COURT: All right.

Assuming that under the facts

that are presented to me, it's very

difficult to believe that there's any

intentional act on Miss Hill, but that's

not the test. The question is, here, is

there -- if we went to the jury right

now, could it be upheld on appeal? Would

there be substantial evidence to support

the verdict?

MR. TARDIFF: Absolutely not. And I

can go through, if you want me to go

through each piece of evidence.

THE COURT: Let's discuss the pieces

of evidence regarding Miss Hill, because

there is substantial greater

47

relationship in context between Mr.

Rockwood and Miss Hill than Mr. O'Connell.

There, there was such a minimal contact,

and the only evidence is that he endorsed

and supported the recommendations of Miss

Hill, and I willI accept your offer of

proof in that regard, and then he made a

recommendation based on Miss’ Hill's

recommendations. There's just no evidence

there with regard to Mr. O'Connell, but

there, if you buy Miss Barry's theory, you

say that Miss Hill did all of these

things for the ulterior motive to somehow

get Mr. Rockwood.

MR. TARDIFF: Correct.

THE COURT: Now, there's no direct

evidence.

MR. TARDIFF: OKay.

THE COURT: There's no doubt about

that.

MR. TARDIFF: Right.

947

MR. TARDIFF: I don't think that's

the way Mount Healthy looks at it. They |

look at it, "Would this have happened, no

matter who would have done i@;

notwithstanding any retaliation?"

THE COURT: Frankly, although I did

read Mount Healthy, I haven't read it in

the last month. I read it the

first time we were going through this, and

I don't really know, although from a

practical standpoint, it doesn't really

matter at this point. That really is your

affirmative defense, and we haven't gotten

there yet. We're really only

talking about the second issue.

MR. TARDIFF: That's the focus of this

motion. I think we've put on sufficient

evidence for our defense anyway, but

that's a different story.

THE COURT: That's a separate issue.

MR. TARDIFF: But we're talking about

49

causation, and so the same issues are

involved because of the causation.

She says there's no chain of causation,

Judge. Come on.

I will point out to the Court

Exhibit 32 and Exhibit 34 are the chain of

causation.

THE COURT: Based on the material

before the Court, I'm going to grant the

motion with regard to Miss Hill,

particularly so in light of the Erickson

case. I think that that really is the

deciding issue before me. It's very clear

that the Federal Ninth Circuit Court of

Appeals is telling me that supposition,

conjecture is just not sufficient, and

that's all there really is here, and for

that reason, the Court will grant the

motion.

"50

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA BARBARA

RICHARD ROCKWOOD, CASE NO. 167608

Plaintiff,

JUDGMENT OF

NONSUIT

)

)

)

)

)

vs. )

)

BRIAN O'CONNELL, )

)

)

)

)

et al.,

Trial Date: July

1, 1992

Defendants Place: Dept. Two

This case came on regularly for trial

by jury on July 1, 1992 in Department Two

of the above-entitled court, the Honorable

Bruce Wm. Dodds, Judge Presiding.

Plaintiff, RICHARD ROCKWOOD, appeared

ol

through his attorney of record, Patricia

Barry. Defendant, BRIAN O'CONNELL,

appeared through his attorney of record,

David Allen of the Office of County

Counsel. Defendant, SHARON HILL, appeared

through her attorney or record, Neil S.

Tardiff of Tardiff & Staton. Evidence,

both oral and documentary, was presented

by plaintiff and on August 3, 1992

plaintiff rested. Immediately after

plaintiff completed the presentation of

his evidence and rested, defendants moved

this court pursuant to Code of Civil

Procedure, sections 58lc and 630 for a

judgment of nonsuit and/or directed

verdict on the grounds that insufficient

evidence was introduced to justify a

verdict in plaintiff's favor. After

reviewing the moving papers and hearing

oral arguments on said motions and after a

review of the evidence presented, the

02

court concluded that the evidence

presented supported the granting of

said motions and enters judgment

accordingly:

IT IS ORDERED, ADJUDGED AND DECREED

that

1. Judgment be entered in favor of

Defendants, BRIAN O'CONNELL and SHARON

HILL and against Plaintiff, RICHARD

ROCKWOOD

2. Attorneys fees may, after proper

motion, be awarded to Defendants pursuant

to 42 U.S.C., section 1988.

a. Costs pursuant to Code of Civil

Procedure, section 1033.5 are awarded in

an amount determined pursuant to. an

appropriate memorandum of costs subject to

a timely motion to tax.

DATED:

Judge of the

Superior Court

od

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

RICHARD ROCKWOOD, 2d Civil No.

B042448

Plaintiff and (Super. Ct. No.

Appellant, 167608)

)

)

)

) (Santa Barbara

Vv. ) County)

)

COUNTY OF SANTA )

BARBARA, et al., )

)

)

)

Defendants and

Respondents.

Richard Rockwood appeals from a

judgment of dismissal entered pursuant to

the sustaining of a demurrer to his second

amended complaint without leave to amend.

The complaint alleges that he was harassed

by his job supervisors and his employment

with the County of Santa Barbara (the

County) was constructively terminated

04

because he tried to prevent the misuse of

County assets. The action was. brought

under title 42 United States Code, section

1983! and the constitutions of the United

States and California.

The complaint names the _ County,

members of the board of ‘supervisors as

individuals, the directors and assistant

directors of various County departments as

individuals, the County counsel, the

County personnel director, and a garage

supervisor as individuals.

We affirm as to the county and some

individual defendants, and reverse as to

other defen “ants.

1/ All further statutory references are to

title 42 of the United States Code unless

otherwise specified.

00

FACTS

The facts alleged in the second

amended complaint are as follows:

In 1980 Rockwood was hired by the

County as an equipment superintendent for

the transportation department. As part of

his job he was directed to resolve

problems including misuse of equipment and

inappropriate personnel assignments.

Rockwood's supervisors were aware

that one employee in particular, Frank

Hawthorne, was misusing County equipment

and time, but when Rockwood attempted to

discipline Hawthorne, he was overruled by

his job supervisors. Those supervisors did

not want misuse of County assets to stop

and permitted Rockwood's co-workers and

subordinates to ignore his instructions.

Nevertheless, Rockwood continued in his

attempt to correct the problem until the

termination of his employment in June

06

hc caieecaeeeeeaaaaiiaiadl

1987.

One of Rockwood's job-supervisors was

a good friend of an aide to a member of

the County board of supervisors. The aide

and her family were part owners of the

Casmalia waste dump, and the job

supervisor had obtained approval for the

County to expend $2.8 million to improve

roads to the dump. In April of 1982

Rockwood went to the board member's office

at the board member's request to discuss

County business. Fearing Rockwood was

passing on information to the board member

concerning the connection between the aide

and the job supervisor, the job supervisor

asked Rockwood to resign. When Rockwood

refused to resign, he was fired. Rockwood

appealed to the civil service commission

and was reinstated to employment in August

of 1982.

Enraged that Rockwood won

o7¢

reinstatement, job supervisors and

employees began a campaign of harassment

that continued until Rockwood's employment

was constructively terminated in June of

1987. The campaign included false

reprimands and performance reports,

assigning Rockwood to isolated and unfit

work places, imposing work requirements

not imposed on other employees, and making

it impossible for Rockwood to do his job.

In August of 1983, the drinking water at

Rockwood's workplace was poisoned, and in

November of 1984 the tires on Rockwood's

car were punctured with an ice pick. It

was never determined who poisoned the

water or punctured the tires.

In July of 1984 Rockwood personally

delivered to each member of the board of

supervisors a cover letter and a packet of

documents illustrating the harassment he

had been subjected to. In the cover letter

98

he discussed how his job supervisors

planned to eliminate his position as

equipment superintendent. In November of

1984 the board, at his job supervisor's

request, eliminated the position of

equipment superintendent. Rockwood was

demoted to vehicle specialist.

Despite his demotion, Rockwood was

entitled to retain his current level of

pay under a civil service provision known

as the "Y factor." His job supervisors did

not tell him of the Y factor and refused

to assist him in obtaining higher pay when

he brought it to their attention.

Eventually, he obtained yY factor pay

through the personnel department.

On December 1, 1986, Rockwood was informed

by his job supervisor that he was going to

lose Y factor pay as of December 15. On

December 2 Rockwood wrote the board of

supervisors, but they refused to

09

investigate the loss in pay.

In June of 1987, in a final attempt

to drive Rockwood out of County

employment, his job supervisor sent him

written notice that his position as

vehicle specialist would be abolished as

of June 30. Rockwood wrote a letter to the

board of supervisors complaining of the

demotion. A job supervisor responded at

the request of the board, but the decision

to abolish the position was not withdrawn.

Rockwood claims the action "constructively

terminated" his employment with the

County.

The complaint’ states: "Defendant

Board Members knew the recommendation for

eliminating Mr. ROCKWOOD'S job was based

on funding constraints [sic] and yet, at

the same time they approved a pay increase

for Defendant HAWTHORNE and were aware he

had recently received three others."

60

However, the complaint elsewhere states

Hawthorne's promotion to garage supervisor

and pay increase took place "some time

between July 1, 1987 and April 1988," that

is, after, rather than at the uone time,

Rockwood's job category was eliminated.

In addition to allegations that the

board of supervisors refused to take

action to stop the harassment,’ the

complaint also alleges that the County

counsel and the chief administrative

officer refused to take action.

The trial court’ sustained the

demurrer without leave to amend, and

Rockwood appeals the ensuing judgment of

dismissal.

DISCUSSION

I

Section 1983 provides in part:

"Every person who, under color of any

statute, ordinance, regulation, custom, or

61

usage, of any State . . . subjects, or

causes to be subjected, any citizen of the

United States .. . 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."

Actions brought under section 1983

are subject to the statute of limitations

for personal injuries prevailing in the

state where the action is brought. (Wilson

v. Garcia (1985) 471 U.S. 261.) In

California, that time period is one year.

(Code Civ. Proc., § 340, subd. (3).)

Most of the acts alleged here

occurred outside of the statutory period.

Rockwood argues that he is entitled to

maintain a section 1983 action based on a

continuing pattern of harassment’ and

retaliation even if some of the acts

62

occurred outside the statutory period.

Because some of the acts were alleged

to have occurred within the statutory

period, there would seem to be little

doubt that Rockwood's entire action is not

barred by the statute of limitations.

However, under the usual rule that the

statute of limitations begins to run upon

the occurrence of the last essential

element of the cause of action (Kensinger

Vv. ~“bbott Laboratories (1985) 171

Cal.App.3d 376, 381), a separate

limitation should apply to each act of

retaliation, and we can see no basis for

holding that conduct occurring outside the

statutory period can give rise to a cause

of action under section 1983. Such a

holding would make a nullity of the

concept of limitations. Cases relied on by

Rockwood, such as Page v. United States

(D.Cc.Cir. i984) 729 F.2d 818, have no

63

stalls

application here because they are not

based on the California statute of

limitations. Thus, even though Rockwood

may be able to plead facts occurring prior

to the statute in an attempt to show that

the County adopted harassment as_ an

official policy, he can only state a cause

of action for conduct occurring within one

year of the filing of his complaint.

A. Liabilitv of County

A local gqovernment is not liable

under section 1983 for injuries inflicted

solely by its employees or agents; rather

it is only where the execution of the

official policy or custom of a local

government inflicts injury that’ the

government as an entity is responsible.

(Monell v. Ww Ci a: 2 °F

Serv. (1978) 436 U.S. 658, 694.)

"Municipal liability attaches only where

the decisionmaker possesses final

64

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 «xercise of particular functions does

not, without more, give rise to municipal

liability based on an exercise of that

discretion." (Pembaur v. Cincinnati (1986)

47S U.S. 469, 481-482, fn. omitted.)

Here there is no allegation that

Rockwood's job supervisors possessed the

final authority to establish any municipal

policy. To the contrary, the complaint

alleges that the members of the board of

supervisors were "ultimately responsible"

for policies concerning the treatment of

County employees. Therefore, if the County

is liable, liability must be based only on

policies adopted by the board of

supervisors; it cannot be based. on

policies adopted by job supervisors or any

69

other County employee. Rockwood must plead

facts sufficient to show that the board of

supervisors expressly or impliedly adopted

the official policy of harassing County

employees who exercised their First

Amendment rights.

Rockwood argues the County impliedly

adopted the policy by failing to act when

the board members were notified of the

harassment. However, only where a failure

to act reflects a deliberate and conscious

choice by a municipality can a

municipality be liable for such failure

under section 1983. (Canton v. Harris

(1989) 489 U.S. __,.... [103 L.Ed.2d 412,

427).)

Here Rockwood wrote the board of

supervisors in July of 1984 giving details

of the harassment he claims he suffered.

There is no allegation that he followed up

on the letter or otherwise pressed board

66

a

members for action. The next contact with

the board was not until almost two and a

half years later, in December of 1986,

when he wrote the board asking them to

investigate the loss of his "Y factor"

pay. He did not allege facts to show that

he was entitled to continue to receive "yY

factor" pay. He wrote the board a final

time to protest the elimination of his job

Classification. The stated purpose for the

elimination of the job classification was

"fiscal constraints." No facts are

alleged to show that this was not the true

purpose as far as the board of supervisors

was concerned; that Hawthorne was later

promoted to a different position shows’

nothing.

A County board of supervisors

ordinarily does not become directly

involved with employee complaints. That

the board was reluctant to intervene in

67

te a Dh

personnel matters upon the complaint of a

Single employee does not show that they

made a deliberate and conscious choice to

adopt a policy of harassment and

retaliation. Nor is the allegation that a

job category was eliminated sufficient to

show that the board members adopted a

policy of harassment. No cause of action

was stated against the County as an

entity. Rockwood's reliance on Thompson v.

City of Starkville (5th Cir. 1990) 901

F.2d 456 is misplaced. The issue of

municipal liability was not discussed

there. A case is not authority for matters

not discussed therein. (Wasson v. Atlantic

National Ins. Co. (1962) 207 Cal.App.2d

464, 471.)

B. Members of the Board of Supervisors

We find no cause of action alleged

against members of the board of

supervisors as individuals. Not only are

68

**A\FFIRMED IN PART AND REVERSE IN PART**

Fach Party To Bear Own Costs On Appeal.

i witness my hand and the seal of the State

affixed my office this Oct l 1990

ROBERT N. WILSON, Clerk

By:

Deputy Clerk

EXHIBIT 1

140

exercise of his right of free speech. That

is sufficient to state a cause of action

as to those defendants.

The only specific allegations against

Ronald Gilman and Frank Hawthorne

occurring within the statute of

limitations were that they spied on

Rockwood at work. This is not conduct that

violates clearly established statutory or

constitutional rights, and thus no cause

of action was stated as to those

defendants.

The complaint alleges that county

personnel director Steve Schinnerer

refused to stop the abolition of

Rockwood's job category even though he

knew or should have known the action was

retaliatory. However, there are not

sufficient facts alleged to show that

Schinnerer himself had any retaliatory

motive, only that he failed to _ stop

71

retaliatory action taken by . others.

Similarly, although the complaint alleges

that County Administrator David Eibaum

approved the abolition of Rockwood 's job

category and County Counsel Kenneth lL.

Nelsen defended the County, there is no

sufficient allegation that they had any

retaliatory motive in doing so.

Rockwood cites no authority to

support the proposition that such

omissions or actions taken without

retaliatory motive violate clearly

established constitutional or statutory

rights. Thus, we find the complaint fails

to state a cause of action against

Schinnerer, Elbaum and Nelsen.

II

Rockwood next complains that the trial

court said nothing about the deprivation

of his right to free speech under the

First Amendment to the United States

72

Constitution and article I, section 2,

subdivision (a) of the California

Constitution. He appears to contend that

even if no cause of action is available to

him under section 1983, he has stated a

good cause of action for violation of his

constitutional rights.

Section 1983 is the vehicle by which

the infringement of a constitutional right

becomes a "constitutional tort." Rockwood

points to no authority for maintaining a

constitutional tort action apart from

section 1983 or a similar statute.

California courts, without reference

to section 1983 or a similar statute,

however, have granted injunctive relief to

public employees who have been disciplined

or their employment terminated because of

the exercise of a constitutional right.

(See, e.g., Adcock v. Board of Education

(1973) 10 Cal.3d 60.) But Rockwood points

73

to no authority, apart from section 1983,

for granting such relief where’ the

employee has failed to exhaust available

administrative remedies.2/ Rather,

Rockwood contends that no administrative

remedy was available.

He argues that civil service rules do

not provide a right to appeal an action

taken in retaliation for the exercise of

the right to free speech. However, Civil

Service Rule 508 provides in part: "No

person in the classified service ...

shall be discriminated against because of

race, religion, political affiliation. .

2/ Actions brought under section 1983. are

excepted from the rule that the plaintiff

must exhaust administrative remedies

before seeking relief in the courts.

(Patsy v. Florida Board of Regents (1982)

457 U.S. 496.)

74

- or other non-merit factor." Retaliation

for the exercise of the right to free

speech is a form of discrimination based

on a "“non-merit factor." Failure to

exhaust administrative remedies is a

jurisdictional defect that bars’ court

action. (Barnes Vv. State _Bd. of

Equalization (1981) 118 Cal.App.3d 994,

i001.) Because Rockwood failed to

exhaust available administrative remedies,

injunctive relief based directly on

constitutional provisions would not be

appropriate. Moreover, the elimination of

Rockwood's job category was a legislative

action, and a court has no einen to

command or prohibit the exercise of a

legislative function. (Hicks v. Board of

Supervisors, supra, 69 Cal.App.3d at p.

235.)

IIlI

The only issue remaining is whether

79

Rockwood should be allowed to amend his

complaint to attempt to state a cause of

action against those defendants who we

have found were properly dismissed from

the action. A refusal to allow an

amendment after « Cen is sustained is

not an abuse of discretion where there

appears no reasonable probability that the

complaint's defects can be cured. (Buford

Vv. State oof California (1980) 104

Cal.App.3d 811, 818.)

Here Rockwood has had three

opportunities to state a cause of action,

and a general demurrer has been sustained

each time. The trial court had the

opportunity to review the proposed

amendments to his complaint attached to

his motion for reconsideration. We have

also reviewed the proposed amendments, and

they do not remedy’ the complaint's

defects. Under the circumstances, we find

76

no abuse of discretion.

The judgment is reversed as

defendants Menchen, Wagner, 90'Connell

Hill. The judgment is affirmed as to

other defendants.

The parties are to bear their

costs on appeal.

NOT TO BE PUBLISHED.

GILBERT, J.

We concur:

STONE, P. J.

ABBE, J.

to

and

all

own

Ronald C. Stevens, Judge

Superior Court County of Santa Barbara

Patricia J. Barry for Plaintiff and

Appellant.

David Nawi, County Counsel, Marvin

Levine, Acting County Counsel, Stephen D.

Underwood, Senior Deputy County Counsel,

Patricia J. Clancy, Deputy County Counsel,

for Defendants and Respondents.

78

PATRICIA J. BARRY

25835 Narbonne Ave.

Suite 220

Lomita, California 90717

(213) 534-0093

Attorney for Plaintiff Richard Rockwood

SUPERIOR COURT OF STATE OF CALIFORNIA

SANTA BARBARA COUNTY

RICHARD ROCKWOOD,

Plaintiff,

vs.

BIRAN O'CONNEL

WILLIAM MENCHEN,

CHARLES WAGNER,

and SHARON HILL,

Defendants

a dd a a

The Motions

of Defendants Brian

No. 167608

AMENDED NUNC PRO TUNC

ORDER DENY NG

DEFENDANTS HILL'S AND

O'CONNELL'S MOTIONS

FOR SUMMARY JUDGMENT

(CCP. SEC.437C)

DATE: OCT. 25, 1991

TIME: 9 AM

DEPT: 4 (J. THOMAS R.

ADAMS)

for Summary Judgment

O'Connell and Sharon

Hill came on regularly for hearing by the

Court in Department

4, before the

79

Honorable Thomas R. Adams, presiding

Judge, on October 25, 1991. Present ln

court were Patricia J. Barry for

Plaintiff Richard Rockwood and David

Allen, Deputy County Counsel and attorney

for Defendants Hill and O'Connell.

Having considered all the

written material and evidence

contained in Defendants Hill's and

O'Connell's Motions for Summary

Judgment and supporting papers and in

Plaintiff's opposition thereto and its

supporting papers, and after hearing oral

argument from both counsel, the Court

finds that there remain triable issues

of fact as to whether Defendants Hill and

O'Connell retaliated against Plaintiff

Richard Rockwood for exercise of his

First Amendment free speech rights when

they recommended the abolishment of his

position of Vehicle Specialist and a

80

demotion to a position of lower rank,

status, and pay, that of Shop Supervisor,

in 1987, and as to whether they created a

hostile work environment in retaliztion

for exercise of his First Amendment free

speech rights.

The Court further finds that

Defendants Hill and O'Connell are

not entitled to qualified immunity in

that it was settled law at the time

Plaintiff alleges Defendants retaliated

against him by abolishing his job and

demoting him to a position of less pay,

rank, and status, and by creating a

hostile work environment that 13

government officials could not retaliate

against employees for exercise of First

Amendment-protected free speech by

job abolishment, demotion, and/or

creation of a hostile work

environment.

81

Sp Og ae EN GS eee

The Court finds that Facts Nos. IV,

VII, IX, and X of Defendant Sharon Hill's

Statement of Separate Facts and facts

Nos. IV, VII, IX, and X of Defendant

Brian O'Connell's Statement of Separate

Facts remain disputed to be resolved by

the trier of fact, the jury.

IT IS THEREFORE ORDERED that

Defendants Hill's and O'Connell's Motions

for Summary Judgment are denied; and it

is

FURTHER ORDERED that this amended

order is hereby substituted for the order

erroneously entered on November 15, 1991,

nunc pro tunc.

DATED: November 18, 1991

THOMAS R. ADAMS,

OF SUPERIOR CCURT

82

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BRIAN O'CONNELL

and SHARON HILL,

Petitioners, No. B062859

Sup. Ct. No.

vs. 167608

(Santa Barbara

SUPERIOR COURT OF THE County)

STATE OF CALIFORNIA, (Thomas Adams,

FOR THE COUNTY OF Judge)

SANTA BARBARA

Respondent, ORDER

RICHARD ROCKWOOD,

Real Party in

Interest

me ee ee ee ee ee ee ee ee ee ee eee See See See

THE COURT:

We have read and considered the

petition for writ of mandate filed

November 14, 1991. We take judicial

notice of our opinion in Richard Rockwood

v. County of Santa Barbara (July 27,

1990, B042448.)

We deny the petition. (Babb v.

Superior Court (1971) 3 Cal. 3d 841, 851;

Continental Life Insurance Co. v.

Superior Court (1985) 165 Cal. App. 3d

1069, 1072;

Roman Catholic Archbishop v. Superior

Court (1971) 15 Cal App. 3d 405, 410.)

84

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA BARBARA

RICHARD ROCKWOOD, CASE NO. 167608

DECISION AND ORDER

ON MOTION FOR

SUMMARY JUDGMENT

Plaintiff,

vs.

BRIAN O'CONNELL,

WILLIAM MENCHEN,

CHARLES WAGNER, and

SHARON HILL,

)

)

)

)

)

)

)

)

Defendants. )

The Court finds that the issues

being raised in the pending motions for

summary judgment filed on behalf of

defendants O'Connell and Hill are

identical to the issues raised in the

summary judgment motions filed on behalf

of those same defendants in September,

1991. Those motions were denied. The

Court further finds that there are no

newly discovered facts and circumstances

895

which support reassertion of those same

issues. Therefore, pursuant to §437c(f)

of the Code of Civil Procedure, the

motions should be denied.

Even if the Court were to accept the

argument of defendants' counsel ‘that the

exposition of the third prong of the test

enunciated in the Mt. Healthy School

District case constitutes a heretofore

unexplored "issue," the motion must still

fail. Mr. Yager's declaration as to what

his state of mind and that of the other

members of the Board of Supervisors would

have been had they known that the persons

recommending elimination of plaintiff's

job were doing so in retaliation for

plaintiff's exercise of his free speech

rights, is precisely the kind of evidence

which subsection (e) of Code of Civil

Procedure §437c states may be disregarded

in the discretion of the Court.

ESSE, SEL

The motion for summary judgment is

denied.

DATED: June 1992.

—e 7

William L. Gordon

Judge of the

Superior Court

87

FOR THE SECOND APPELLATE DISTRICT

DIVISION: 6

COUNTY C1ERK'S OFFICE

Sanata Barbara County

1100 Anacapa Street

Santa Barbara, CA. 93101

RE: Rockwood, Richard

vs.

Santa Barbara, County of

Civil BO42448 Santa Barbara NO.

167608

* * REMITTITUR * *

I, Robert N. Wilson, Clerk of the

Court of Appeal of the State of

California, For the Second Appellate

District, do hereby certify that the

attached is a true and correct copy of

the original order, opinion or decision

entered in the above-entitled cause on

07/27/90 and that this order, opinion or

decision has now become final.

.

PATRICIA J. BARRY, Attorney

BAR # 059116

134 Nelson Street, Suite A

Arroyo Grand, California 93420

(805) 489-8487

Attorney for Plaintiff RICHARD ROCKWOOD

SUPERIOR COURT OF THE

STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF

SANTA BARBARA

RICHARD ROCKWOOD, ) CASE NO: 167608

)

Plaintiff, ) PLAINTIFF'S

) SECOND

vs. ) AMENDED

) COMPLAINT

COUNTY OF SANTA BARBARA,) FOR

DAVID YAGER, ) DAMAGES,

ROBERT KALLMAN, WILLIAM ) DECLARATORY

WALLACE, DEWAYNE ) AND INJUNCTIVE

HOLMDAHL, TORU MIYOSHI RELIEF

)

WILLIAM G. MENCHEN, )

CHARLES F. WAGNER, )

BRIAN P. O'CONNELL )

SHARON A. HILL, RONALD )

M. GILMAN, STEVE )

SCHINNERER, KENNETH L. _ )

NELSON, FRANK HAWTHORNE, )

AND DOES I - XxX,) )

)

)

)

Defendants.

89

FIRST CAUSE OF ACTION

(violation of First, Fifth, and

Fourteenth Amendment rights under U. s.

Constitution under color of state

authority - 42 U.S.C. sec.1983 ~ applies

to all defendants)

1. At all times mentioned,

Defendant COUNTY OF SANTA

BARBARA (hereinafter referred to as

"County"), was, and now is, duly

organized and existing under and by

virtue of the laws of the State of

California as a political subdivision of

the State of California.

2. At all times herein mentioned,

each of the defendants was acting under

the authority vested in them by Defendant

County and under color of state and

county law, authority, rules,

90

regulations, practices, and policies.

3. Plaintiff RICHARD ROCKWOOD is

informed and believes, and upon such

information and belief, alleges that at

all times mentioned herein, each of the

defendants was the agent, employee,

or representative of the remaining

defendants, and was acting under the

control, supervision, and direction of

said defendants within the course, scope,

and authority of such relationships.

4. Plaintiff does not know the true

names or capacities of Defendants sued as

DOES I - XX, but Plaintiff is informed

and believes that each of said defendants

participated in, and is responsible for,

the acts resulting in the damages

suffered by Plaintiff, and Plaintiff will

amend this complaint to set forth their

true names and capacities when the same

has been ascertained.

91

5. At all times mentioned, it had

been, and still is, the practice and

policy of the Transportation Department,

Public Works Department, and General

Services Department of defendant County

to permit county personnel, in

particular, Defendant FRANK HAWTHORNE,

employed in the automotive and equipment

shops and garages owned and operated by

Defendant County to provide mechanical

services, parts, fuels, equipment, and

other materials to other county

employees, friends, and customers at

taxpayer expense for compensation.

6. Defendants DAVID YAGER,

ROBERT KALLMAN, WILLIAM WALLACE,

DEWAYNE HOLMDAHL, and TORU MIYOSHI were,

at the times material to this action,

elected members of the County Board of

Supervisors (hereinafter referred to as

"Defendant Board Members"). Defendant

92

Board Members were ultimately

responsible, in their non-legislative,

administrative capacity, for the county

employees. Pursuant to Govt. C. Section

25207 and 25208, Defendant Board members

must ensure all employees are not

subjected to harassment, retaliation,

and/or violations of their constitutional

rights. They must ultimately order

demotions, abolishment of all positions,

and all pay reductions.

7. When placed on notice that an

employee is suffering retaliation,

harassment, and/or violation of their

rights, Defendant Board Members have a

duty to intervene, to determine the

merits of the complaints, and if

necessary, to discipline the offending

officials and supervisors.

8. However, the actual practice of

Defendant Board Members is to ignore

93

complaints and requests for intervention

from employees who assert they are being

harassed, retaliated against, and/or

having their constitutional rights

violated. In this case, further, |

Defendant Board Members not only

acquiesced in, or ignored, the

retaliation and harassment of which

Plaintiff complains, but directly

participated in adverse actions against

him. Thus, the policy of Defendant

County is to permit and participate in

the harassment, retaliation, and/or

violation of constitutional rights of

employees.

9. In December 1980, Plaintiff was

employed by the Transportation Department

of Defendant County as Equipment

Superintendent, a managerial position,

with responsibility for annual budget in

excess of $4,500,000.00, and to oversee

94

the vehicle fleet of the County and the

supervision of garage operations.

10. Upon commencing such

employment, Plaintiff was provided

several reports directed to the

Transportation Department by the

County auditor-controller concerning lack

of inventory controls, inappropriate

personnel assignments, delays in

maintenance work, lack of records, and

other discrepancies. Plaintiff was

directed to resolve these problems.

11. Beginning in December 1980 and

continuing to the date of his

termination, Plaintiff repeatedly

attempted to correct the problems

described in paragraph 10 and to

discipline Defendant HAWTHORNE for his

misuse of county equipment and time, of

which Defendant MENCHEN, Messrs STEWARD

and PURDY, were well aware. While in the

99

Department of Transportation, Plaintiff

was repeatedly overruled by his

supervisors, including the former

Director of Transportation, LELAND

STEWARD, the former Assistant Director of

Transportation, HAROLD PURDY and another

former Assistant Director of

Transportation, Defendant WILLIAM G.

MENCHEN, now an official in Public

Works Department. In addition, these

supervisors would permit subordinates and

coworkers of the plaintiff to ignore his

directions, in particular Defendant

HAWTHORNE. Plaintiff's supervisors, in

particular, Mr. STEWARD, and coworkers,

in particular, Defendant HAWTHORNE, did

not want to stop their misuse of country

\

funds and property.

12. Mr. STEWARD directed Plaintiff

to deliver agenda materials to former

Board Member HARRELL FLETCHER, which he

96

did.

13. Mr. FLETCHER asked Plaintiff to

come to his office on April 27, 1982, to

discuss County business. Plaintiff met

with the former Board member on that day.

That same day, Mr. PURDY telephoned

Plaintiff on behalf of Mr. STEWARD

wanting to know if Plaintiff had met with

Mr. FLETCHER.

14. Unknown to Plaintiff at the

time, Mr. STEWARD was receiving

confidential information from Mr.

FLETCHER'S administrative aide, JONI

GRAY-WOOD. She and other members of her

family were good friends of Mr. STEWARD.

In addition, she and her family members

were part owners of Casmalia Dump. Mr.

STEWARD was the road commissioner, and in

that capacity, obtained approval from the

Board of Supervisors for 2.8 million

dollars for the improvement of roads to

97

the dump.

15. Mr. STEWARD, paranoid that

Plaintiff was passing on information to

the supervisor about his connections to

Ms. GRAY-WOOD, although Plaintiff was

not, ordered Plaintiff to resign.

16. When Plaintiff refused, he was

terminated on May 4, 1982. Plaintiff had

a hearing before the Civil Service

Commission of Defendant County in August

1982. In preparation for the hearing,

Mr. PURDY, Defendant MENCHEN, Ms. JONI

GRAY-WOOD, and Defendant HAWTHORNE, on

behalf of Mr. STEWARD, solicited adverse

statements and witnesses against

Plaintiff. One solicited adverse letter

was submitted by Defendant RONALD

GILLMAN, at that time Assistant

Agricultural Commissioner and now

Agricultural Commissioner.

17. The Commission ruled in

98

Plaintiff's favor and ordered his

reinstatement with backpay, but no

attorney fees and costs. The Commission

also found Mr. STEWARD, Defendant

MENCHEN, and Mr. PURDY had lied under

oath.

18. Enraged Plaintiff had won

reinstatement, Mr. STEWARD, Mr. PURDY,

and Defendants MENCHEN and HAWTHORNE

began a campaign of retaliation and

harassment against Plaintiff which

continued until Plaintiff was

constructively terminated from

Defendant County employment in June 1987.

19. Immediately upon reinstatement

on August 31, 1982, as retaliation for

winning his case Mr. STEWARD, Mr. PURDY,

and Defendant MENCHEN ordered Plaintiff

to move from the County courthouse to the

Road Yard where he remained until March

1983. In addition, the three supervisors

99

restricted Plaintiff's work assignments

and ordered him in a letter dated August

31, 1982, not to speak to any of the

other employees and verbally ordered the

other employees not to talk to him. They

placed this restriction on other

employee.

20. When Plaintiff complained to

the Commission, the Commission wrote a

letter to Dana Smith, a deputy county

counsel, dated September 21, 1982,

expressing alarm over contempt of its

order "at least in spirit if not in

fact", by Messrs. STEWARD and PURDY and

Defendant MENCHEN. A true and correct

copy of that letter is marked and

attached as Exhibit 1 and incorporated

herein.

21. As additional acts of

harassment and retaliation, Messrs.

STEWARD and PURDY and Defendant MENCHEN

issued false and defamatory reprimands

and performance reports to Plaintiff on

August 31, September 7, September 21,

September 30, October 13, October 21,

November 17, and November 24, 1982.

Further, Messrs. STEWARD and PURDY and

Defendant MENCHEN continued to overlook

the misuse and misappropriation of County

property, time, equipment, vehicles, and

inventory by Defendant HAWTHORNE.

22. In addition, Messrs STEWARD

and PURDY and Defendant MENCHEN imposed

on Plaintiff and no other employee the

requirement of submitting monthly, and

frequently weekly, written reports

detailing his intended work schedule and

objectives for the coming month/week, and

his specific accomplishments during the

past month/week.

23. In mid-March 1983, Mr. STEWARD

was forced to resign. At the same time,

101

the Department of Transportation was

merged into the Public Works Department

under the Public Works Director,

Defendant CHARLES WAGNER, who had also

formerly served as a deputy Director of

Transportation under Mr. STEWARD.

24. Defendant WAGNER became

Plaintiff's supervisor in March 1983.

Immediately, he retaliated against

Plaintiff by writing him a false and

defamatory performance report on June 20,

1983 and an unjustified Letter of

Reprimand, based on Plaintiff

complaining about the misuse of County

property and funds by Defendant

HAWTHORNE.

25. As ongoing retaliation and

harassment, Defendant MENCHEN and Mr.

EDWARD J. MARINI, Assistant Director for

Public Works and also one of Plaintiff's

supervisors, issued false and defamatory

102

performance reports and letters of

reprimand to Plaintiff on October 31, and

November 11, 1983, February 1, August 11,

and December 3, 1984.

26. On August 10, 1983, the

drinking water at Cathedral Oaks Garage

was pecisoned. Plaintiff took himself,

five subordinates, and a prisoner worker

to the hospital to see if they had been

peisoned.

27. Defendant HAWTHORNE had signed

out sick at noon on August 10, 1983, the

day of the discovery of the poisoned

water. Yet, Plaintiff and Mr. McElroy,

Equipment Shop Supervisor, had seen

Defendant HAWTHORNE leave the County

Administration building that day at 1:55

PM.

28. Although the Sheriff's

Department began an investigation of the

incident, eventually, it turned over the

103

investigation to the Public Works

Department. The individual who poisoned

the drinking water was never identified.

29. However, when Plaintiff moved

into the automotive shop in 1984,

Defendant HAWTHORNE moved out of his

office and Plaintiff took it over. On

January 26, 1984, in going through a

former file cabinet of Defendant

HAWTHORNE, Plaintiff discovered a

flourescene tablet identical to the

tablets used to poison the water

according to the laboratory analysis

performed on the water.

30. On April 26, 1984, Plaintiff

held a meeting with Defendant HAWTHORNE,

Mr. Marini, and a shop supervisor

regarding withholding of documents from

Plaintiff by Mr. Marini and Defendant

HAWTHORNE. These documents were needed

to perform his job. That same day as

104

retaliation for complaining, Mr. Marini

immediately reassigned Plaintiff to an

isolated room in the courthouse, where he

instructed Plaintiff to remain at all

times.

31. In addition, as further

retaliation, Mr. MARINI took away

Plaintiff's vehicle and assigned it to

Defendant HAWTHORNE. Mr. MARINI

effectively kept Plaintiff from

performing his duties.

32. An employee gave testimony to

the 1984/1985 Grand Jury that Mr. MARINI,

Defendant HAWTHORNE, and dispatcher TOM

HAYMAN had been running a theft ring,

using county automotive parts and

supplies. The ring had been operating

before Plaintiff was employed by

Defendant County.

33. In July 1984, Defendants WAGNER

and MENCHEN and Mr. MARINI wrongfully

109

accused Plaintiff of having written a

letter to the State Auditor-General

suggesting an investigation of corrupt

procedures in the Public Works Dept.

34. In September 1984, Defendant

Board Members created a new department,

General Services. Divisions in Public

Works were transferred to General

Services, including Vehicle Operations

where Plaintiff worked. Defendant BRIAN

O'CONNELL became the Director of General

Services and Defendant SHARON HILL, its

assistant Director.

35. Although Plaintiff had been

transferred to General Services,

Defendant WAGNER continued to exercise

supervisory authority over Plaintiff.

For example, on November 27, 1984,

Defendant WAGNER ordered Plaintiff to

remove his car from the parking lot.

Defendant HILL gave the same order to

106

Plaintiff in a memo backdated November

26, 1984, on November 28.

36. On November 27, Plaintiff was

unable to comply with Defendant WAGNER'S

order because there was no parking

available elsewhere. Plaintiff learned

from a phone call of a dispatcher at 5:00

PM at the parking lot, two tires of his

car were flat. He discovered they had

been punctured with an ice pick to insure

slow leaks. Plaintiff made a police

report, but the identity of the person

who punctured Plaintiff's tires was never

learned.

37. As an additional act of

retaliation and harassment, Defendant

WAGNER requested that Plaintiff's

Equipment Superintendent position be

abolished. Defendant Board Members

approved the abolishment in December

1984. None of the defendants informed

107

Plaintiff of his right to retain his

higher rate of pay based on the "Y"

factor although they were required to do

so. When Plaintiff discovered the "Y

factor" in reviewing Civil Service

Rules, he applied for the "Y factor".

Defendant WAGNER refused to acknowledge

the "Y factor" and referred Mr. ROCKWOOD

to the Personnel Department. Eventually,

Mr. ROCKWOOD's request was approved, and

Mr. ROCKWOOD permitted to retain his

current rate of pay.

38. Defendants O'CONNELL, and HILL

engaged in a continuing pattern of

harassment and retaliation against

Plaintiff which included excessive

documentation of his work assignments,

such as maintenance of a daily log

imposed on him and no other employee,

excessive scrutiny of his work

performance, unjustified disciplinary

108

actions, and finally, abolishment of his

position as Vehicle Specialist in June

1987. Defendants O'Connell and Hill

engaged in these acts of retaliation on

3/27, 4/1, 4/9, 5/24, 7/18 in 1985; on

2/1, 3/24, 5/23/, 5/27, 6/10, 7/8, 11/26,

12/1, 12/9 in 1986; and on 4/27, 6/17,

6/26, 7/14 in 1987.

39. Since 1982, Defendant MENCHEN

has been involved in the retaliation and

finally the removal of Plaintiff in June

1987.

40. For example, Defendant MENCHEN

solicited adverse letters against

Plaintiff on behalf of Mr. Steward on May

6, 1982. One of the letters he solicited

was from Defendant GILLMAN which

contained falsified statements about the

Plaintiff.

41. Defendant MENCHEN wrote a

memorandum for Defendant WAGNER'S use so

109

that Plaintiff would be reprimanded. The

letters of reprimand contained falsified

information from Defendant WAGNER.

Plaintiff ROCKWOOD found such a

memorandum in his personnel file February

13, 1985. Defendant MENCHEN had dated it

August 8, 1984.

42. On February 12, 1985 Defendant

SHARON HILL informed Plaintiff by memo

that he was not to sue the telephone in

the Santa Maria road yard based on a

complaint made by Defendant MENCHEN.

Plaintiff wrote a memo to Defendant

MENCHEN dated February 14, 1985 stating

that a sign should be Posted for all not

to use the phone, including the public.

As retaliation, Plaintiff received a

formal reprimand from Defendant HILL for

sending Defendant MENCHEN the memo.

43. On April 27, 1987, Plaintiff

received a memo from Defendant HILL

110

stating he could not use the copy machine

at the Santa Barbara road yard for his

work. This came after Defendant MENCHEN

reported Plaintiff to Defendant HILL.1

Other employees were allowed to use the

copy machine.

44. Defendant MENCHEN issued

numerous memos as harassment and

retaliation against the Plaintiff from

August 31, 1982, until the Spring of

1987. The memos written by Defendant

MENCHEN against Plaintiff always resulted

in verbal or written reprimands or

warnings issued by Plaintiff's

Supervisors, in particular, Defendant

HILL. No other employees in General

Services or Public Works were treated in

the same fashion.

43. Defendant GILLMAN, now the

Agricultural Commissioner, engaged in the

harassment and retaliation of Plaintiff.

111

semen i il aie ac emma

He submitted an adverse letter solicited

by Defendant MENCHEN dated May 4, 1982 to

assist Mr. Steward at Plaintiff's Civil

Service Commission hearing.

44. On April 18, 1986, Defendant

GILLMAN volunteered to assist Defendants

HILL and O'CONNELL in the removal of the

Plaintiff by having employees report to

him the activities of Plaintiff.

Defendant GILLMAN did so on April 24,

1986 while Plaintiff was involved in

putting the specifications together for

Defendant GILLMAN'S department.

47. On May 5, 1986 Defendant HILL

ordered Plaintiff to write a detailed

report for the two days he spent in Santa

Maria assisting Defendant GILLMAN'S

department needs. Plaintiff learned from

County employees he was being watched and

the employees would be questioned by

Defendant GILLMAN about Plaintiff's

activities. Defendant GILLMAN continued

spying on Plaintiff and scrutinizing his

moves until Plaintiff was removed on June

30, 1987.

48. On March 11, 1986, Defendant

HILL directed Plaintiff to look at a

trailer she and Defendant HAWTHORNE had

set up by the automotive shop on Calle

Real. Plaintiff was further ordered to

"keep Defendant FRANK

HAWTHORNE...informed of [his] arrivals,

departures, and general whereabouts

during the course of each workday." This

requirement was not imposed on any other

worker and continued to the date of

Plaintiff's termination.

49. The trailer was too small for a

desk, with no windows, extremely

deteriorated, and in a filthy condition.

A County Safety Officer filed a written

report after inspecting the trailer, on

113

March 12, 1986, indicating it was unsafe

and uninhabitable under any

circumstances. Defendants HILL,

HAWTHORNE, and O'CONNELL were therefore

forced to rent a more suitable trailer

for Plaintiff's office.

50. On three occasions including in

1987, Defendant HILL stated to Plaintiff:

"Why do you stay?"

51. On July 25, 1984, Plaintiff

personally delivered to the office of

Defendants YAGER, KALLMAN, WALLACE,

HOLMDAHL, and MIYOSHI a cover letter and

a packet of documents illustrating the

harassment of Plaintiff, obstruction of

his constitutional rights, restrictions

to perform his job classification, and

denial of his freedom of speech and of

access to the areas of work he was to

supervise for the county. In the letter

to Defendant Board Members, Plaintiff

114

discussed how his supervisors in Public

Works, Defendant WAGNER and Mr. Marini,

had planned to eliminate his position as

Equipment Superintendent well before

Plaintiff's actual demotion by Defendant

Board Members took place in November

1984. Although put on actual notice by

the Plaintiff that he would be demoted as

an act of retaliation, nonetheless, on

November 5, 1984, Defendant Board Members

eliminated Plaintiff's position of

Equipment Superintendent and demoted him

to Vehicle Specialist.

53. As already indicated, Plaintiff

learned about the "Y Factor" which he

applied for and was granted. On December

1, 1986, as further harassment and

retaliation, Defendant HILL gave written

notice that Plaintiff would lose the "Y

Factor" and therefore suffer a loss of

pay effective December 15, 1986.

119

54. On December 2, 1986, Plaintiff

wrote another letter to Defendant Board

Members indicating he was going to lose

the "Y Factor" and therefore a loss.in

pay. Defendant Board Members refused to

investigate, and Plaintiff in fact

suffered a reduction in pay.

55. Ina final attempt to drive

Plaintiff out of employment with

Defendant County, on June 8, 1987,

Defendant BRIAN O'CONNELL sent written

notice to Plaintiff his position as

Vehicle Specialist would be abolished on

June 30, 1987. On June 12, Plaintiff

wrote another letter to the Defendant

Board Members after receiving the June 8

notice from Defendant O'CONNELL.

defendant Board Members approved

Defendant HAWTHORNE'S new position and

pay increase some time between July l,

1987 and April 1988.

116

56. Defendant O'CONNELL wrote a

letter to Plaintiff stating Defendant

Board Members had asked him to respond to

Plaintiff's June 12 letter. However,

Nefendant O'CONNELL refused to withdraw

the notice of abolishment of Plaintiff's

position. Defendant HAWTHORNE received a

number of pay increases exceed the pay

Plaintiff received as Equipment

Superintendent at the same time Plaintiff

was being demoted and suffered a loss in

pay. Defendant HAWTHORNE'S new job

title, approved by Defendant Board

Members, is Manager of Vehicle

Operations. Yet, Plaintiff's Equipment

Superintendent position and Vehicle

Specialist position were abolished, the

former in 1984 and the latter in 1987.

57. Despite being placed repeatedly

on notice by Plaintiff that the demotions

he had received were retaliation,

117

Defendant Board Members refused to take

any action to protect Plaintiff's job.

They finally approved the elimination of

Mr. ROCKWOOD'S vehicle specialist job,

and Plaintiff was constructively

terminated on June 30, 1987. Defendant

Board Members also approved Defendant

HAWTHORNE'S new position as Manager of

Vehicle Operations and increase in pay

shortly after Mr. ROCKWOOD'S termination.

Defendant Board Members knew the

recommendation for eliminating Mr.

ROCKWOOD'S job was based on funding

constraints and yet, at the same time

they approved a pay increase for

Defendant HAWTHORNE and were aware he had

recently received three others.

58. Defendants HILL and WAGNER join

with Defendant O'CONNELL in recommending

the abolishment of Plaintiff's job which

became effective June 30, 1987.

118

59. At all times material to this

action, Defendant HAWTHORNE has violated

County and State law regarding the use of

County time, inventory, and property. As

early as 1982 plaintiff gave a

performance report to Defendant HAWTHORNE

pointing out that Defendant HAWTHORNE was

having shop employees do his work while

he was using County time for his own

personal business. Further, Plaintiff

had received many calls at his office in

1981 from employees demanding to know if

Defendant HAWTHORNE had repaired their

personally-owned cars.

60. In another performance report

to Defendant HAWTHORNE for the rating

period August 1, 1982 to August l, 1983,

again Plaintiff pointed out to Defendant

HAWTHORNE that he was spending too much

time away from his workplace and that he

did not have inventory under control and

119

accounted for. In all the time Mr.

Rockwood was forced to stay in the

trailer, Mr. ROCKWOOD personally

witnessed Defendant HAWTHORNE using_

County time, inventory, property and

employees for his own gains.

61. On June 14, 1983, in a meeting

with Defendant WAGNER, Mr. MARINI, and

Defendant HAWTHORNE, Defendant WAGNER

gave his support to Defendant HAWTHORNE

and Ms. Woodside, Accounts Payable Clerk

for Vehicle Operations, rather than to

Mr. ROCKWOOD. Mr: ROCKWOOD wanted

Defendant WAGNER to separate Defendant

HAWTHORNE and Ms. WOODSIDE because Ms.

WOODSIDE would cooperate with Defendant

HAWTHORNE bypassing Mr. ROCKWOOD and

later Defendant HILL to pay for products

not approved for order out of 8610 funds.

This illegal action continued into 1987.

Plaintiff was given an adverse

120

performance report by Defendant WAGNER on

June 14 because of his attempts to

separate the two employees.

62. From the time Plaintiff came on

board until his termination on June 30,

1987, Defendant HAWTHORNE spied on

Piaintiff on behalf of Plaintiff's

supervisors and reported all of

Plaintiff's actions to those individuals,

including to Defendant HILL.

63. In 1984 Defendant HAWTHORNE

stated in the presence of employees,

including Jewell Abshire, that the reason

the departments were being divided up was

to get Richard Rockwood out of the

county. He stated that with the new

department they would remove his position

and he was sure Plaintiff would not

accept a lower-paying position because he

could not commute to Santa Barbara from

Santa Maria earning lower pay. A true

121

and correct copy of the affidavit of Ms.

Abshire executed on December 18, 1986, is

marked and attached as Exhibit 2.

64. While he was spying and

reporting on Plaintiff, at the

same time he continued to use county

time, inventory, equipment and property

with the full knowledge and permission of

Defendants O'CONNELL, HILL, MENCHEN,

WAGNER, STEWARD, MARINI, and PURDY. In

1987, Mr. MARINI himself came to

Defendant HAWTHORNE during working hours

to have one of his personally owned

vehicles repaired.

65. Defendant DAVID ELBAUM, COUNTY

ADMINISTRATOR, is responsible for all

actions taken by department heads with

respect to their personnel. Defendant

ELBAUM reports directly to Defendant

Board Members who have delegated this

responsibility to him. Defendant ELBAUM

' 122

is responsible to establish County

policy.

66. Defendant ELBAUM became the

County Administrator in early 1985. He

was on actual notice of the harassment

and retaliation Plaintiff was

experiencing at the hands of his

supervisors.

67. As assistant County

Administrator, Defendant ELBAUM approved

the abolishment of Plaintiff's position

of Equipment Superintendent in November

1984 following recommendations of

Defendants WAGNER, O'CONNELL, MENCHEN,

HILL, and SCHINNERER. He also approved

the abolishment of Mr. ROCKWOOD'S vehicle

specialist job in June 1987, and a short

time later, the promotion of Defendant

HAWTHORNE to Manager of Vehicle

Operations with an increase in pay also

following the recommendations of

123

-sciieesaascmaaiuaiiiiaaiacaiiiael

Defendants WAGNER, O'CONNELL, MENCHEN,

HILL, and SCHINNERER.

68. Defendant SCHINNERER is the

Personnel Director for Defendant COUNTY.

He is responsible for job descriptions,

for reviewing managers' actions against

employees to insure no retaliation is

occurring, for reviewing job

classifications, adverse personnel

actions, such as abolishment of jobs, and

challenges by employees of abolishment of

jobs.

69. Defendant SCHINNERER refused to

stop the demotion/abolishment-of-job

actions in 1984 and in 1987 against Mr.

ROCKWOOD although he knew or should have

known these were retaliatory acts because

plaintiff had won reinstatement in 1982

and because he opposed illegal activities

by Defendant HAWTHORNE and were designed

to create such intolerable working

124

conditions Plaintiff would be driven from

his job.

70. On November 30, 1984, Mr.

ROCKWOOD placed Defendant

SCHINNERER on notice by a letter to him

challenging the appropriateness of the

assignment for vehicle specialist as a

unit 26. Defendant SCHINNERER responded

by promising to lower the job to unit 24,

but never did.

71. Defendant KENNETH L. NELSON is

County Counsel. As such, he is

responsible to insure that no official or

supervisor commits acts of retaliation,

harassment, and/or violation of an

employee's constitutional rights.

Despite this responsibility and despite

being placed on actual notice as to the

harassment, retaliation, and violation of

constitutional rights Plaintiff was

undergoing, Defendant NELSON refused to

125

ee

take any corrective action.

72. Defendant NELSON was aware

Plaintiff's Civil Service hearing, that

he had prevailed at the hearing, and was

reinstated with back pay. His office

also received copies of the document from

the Civil Service Commission marked and

attached as Exhibit 1 to this complaint.

73. On November 21, 1983, Plaintiff

hand delivered a packet of materials to

Dana Smith, Assistant to Defendant

NELSON. In the packet was a copy of a

rebuttal letter written by Plaintiff to

Mr. MARINI'S memorandum dated November

21, 1983.

74. Plaintiff's rebuttal pointed

out Defendant HAWTHORNE'S time away from

his workplace, described the poisoned

water incident, and described how

Defendant HAWTHORNE had approached a

County employee to spread rumors about

126

seiehitanaaa ile

Public Works which the employee declined

to do.

75. Defendant NELSON personally

received a letter from Plaintiff on June

12, 1987 outlining criminal acts that had

been occurring in the County, and the

harassment, retaliation, and loss of

constitutional rights Plaintiff was

experiencing. Yet, Defendant NELSON took

no corrective action and permitted

Plaintiff to suffer a constructive

termination on June 30, 1987.

76. On September, 1987, Plaintiff

had a hearing before the California

Unemployment Appeals Board to obtain

unemployment benefits which had been

denied him by the Employment Development

Department based on what Defendant

O'CONNELL had told them. Defendant

O'CONNELL stated that Plaintiff had quit

his job.

127

__————————

77. Defendant NELSON defended the

actions of officials, including Defendant

O'CONNELL, and fought the award of

unemployment benefits to Plaintiff.

After the hearing officer heard one

testimony of officials of Defendant

COUNTY, including Defendant NELSON,

testify, he awarded full unemployment

benefits to Plaintiff.

78. When Defendant Board Members

abolished Plaintiff's position as

Equipment Superintendent in November 1984

and reduced him to the position of

Vehicle Specialist, Plaintiff attempted

to exhaust his administrative remedy with

the Civil Service Commission. By

letter, the Civil Service Commission

rejected Plaintiff's request for

administrative relief and furthermore

characterized his request for relief as

merely one challenging performance

128

ratings.

79. Therefore, when Defendant Board

Members abolished his Vehicle Specialist

position effective June 30, 1987,

Plaintiff did not appeal to the Civil

Service Commission because it would have

been a futile act.

80. In addition, Defendant

O'CONNELL sent a letter dated June 26,

1987, to Plaintiff stating Civil Service

Commission Regulations did not permit an

appeal on the substance, or merits, of

the layoff, only on procedure. Thus,

there was no civil service remedy

available to Mr. ROCKWOOD.

81. Defendant Board Members and

County Department Directors were

repeatedly placed on notice by Mr.

ROCKWOOD from August 1982 until June of

1987, of the retaliation, violation of

constitutional rights, and constant

129

harassment he was undergoing by the

Transportation, the Public Works, and the

General Services departments.

82. The Board of Supervisors,

personnel department, county counsel, the

civil service commission, and the

affirmative action officer failed to take

any affirmative steps to stop the

harassment and in fact, some participated

in it themselves. They did not reply to

plaintiff ROCKWOOD'S letters for help and

paid no attention to the corruption that

Mr. Rockwood had time and time again

brought to their attention.

83. Those who violated the Civil

Service Rules, Defendant Hawthorne in

particular, utilized county time,

property, person power, equipment, and

facilities for their and others' personal

gain and profit. Plaintiff notified

those in authority many times concerning

130

Ll

Defendant HAWTHORNE, and yet Department

heads consistently protected him.

84. By reason of their acts and

omissions as set forth above, Defendant

COUNTY OF SANTA BARBARA and each of the

other named defendants separately and in

consort, intentionally, willfully, and

maliciously subjected Plaintiff RICHARD

ROCKWOOD tc the deprivation of his rights

as guaranteed by the First, Fifth, and

Fourteenth Amendments to the United

States Constitution and by the 1871 Civil

Rights Act, 42 U.S.C. Section 1983, by

intentionally subjecting Plaintiff to a

deliberate course of retaliatory conduct

in his employment leading to his

termination to punish him for speaking

out against corruption, for attempting to

initiate reform to eliminate corruption

in his department, and for winning

reinstatement to County employment in

131

1982.

85. In doing so, each of the named

defendants also violated Plaintiff

RICHARD ROCKWOOD'S right to substantive

due process by depriving him of the :

property interest in his job and right to

equal protection of the laws.

86. As a further and proximate

result of the acts and omissions of the

defendants, and each of them, as alleged,

Plaintiff RICHARD ROCKWOOD has suffered

emotional distress, mental anguish,

humiliation, fear, shame, anxiety,

embarrassment, worry, and aggravation,

for which he is entitled to general,

special, and punitive damages in amounts

to be proved at the time of trial.

87. The acts of the Defendants

against Plaintiff were willful and

malicious and therefore Plaintiff is

entitled to punitive damages, except from

132

Defendant County.

88. As a further and proximate

result of the acts and omissions of the

defendants, and each of them, as alleged,

Plaintiff RICHARD ROCKWOOD has suffered,

and will continue to suffer, loss of

employment as a result of wrongful

termination, entitling him to recover

back and front pay with interest.

89. As a further and proximate

result of the acts and omissions of the

defendants, and each of them, as aileged,

Plaintiff RICHARD ROCKWOOD was forced to

retain counsel to initiate this lawsuit,

and therefore Plaintiff RICHARD ROCKWOOD

is entitled to attorney's fees under 42.

U.S.C. Section 1988.

SECOND CAUSE OF ACTION

(Violation of Rights under the California

Constitution, Sections l, 2, and 7

Applies to Plaintiff Richard Rockwood and

se

to All Named Defendants)

90. Plaintiff RICHARD ROCKWOOD

hereby realleges each and every

allegation contained in paragraphs 1-83,

inclusive, of his FIRST CAUSE OF ACTION,

and by this reference incorporates the

same as if fully set forth.

91. By their acts and omissions as

set forth above, Defendants, separately

ana in consort, have intentionally,

willfully, and maliciously subjected

Plaintiff RICHARD ROCKWOOD, to the

deprivation of his rights as guaranteed

by Article l, Sections 1, 2, and 7 of the

California Constitution by intentionally

subjecting Plaintiff RICHARD ROCKWOOD to

a deliberate course of retaliatory

conduct in his employment leading to his

termination to punish him for speaking

out against corruption, for attempting to

initiate reform to eliminate corruption

134

in his county department, and for winning

reinstatement to his job in 1982.

92. In doing so, Defendants also

violated Plaintiff's right to substantive

due process by depriving him of the

property interest in his job and violated

his right to equal protection under the

laws guaranteed under the California

Constitution.

93. As a further and proximate

result of the acts and omissions of said

Defendants, and each of them, as alleged,

Plaintiff RICHARD ROCKWOOD has suffered

emotional distress, mental anguish,

humiliation, fear, shame, anxiety,

embarrassment, worry, and aggravation,

for which he is entitled to general,

special, and punitive damages, in amounts

to be proved at the time of trial.

94. The acts of the Defendants

against Plaintiff were willful and

139

malicious and therefore Plaintiff is

entitled to punitive damages, except from

Defendant County.

95. As a further and proximate

result of the acts and omissions of said

Defendants, and each of them, as alleged,

Plaintiff RICHARD ROCKWOOD has suffered,

and will continue to suffer, loss of

employment as a result of wrongful

termination, entitling him to recover

back and front pay with interest.

96. As a further and proximate

result of the acts and omissions of said

Defendants, and each of them, as alleged,

Plaintiff RICHARD ROCKWOOD was forced to

retain counsel to initiate this lawsuit,

and therefore Plaintiff RICHARD ROCKWOOD

is entitled to attorney's fees under Code

of Civil Procedure Section 1021.5

DECLARATORY RELIEF

97. An actual and existing

136

controversy has arisen between Plaintiff

and Defendants in that Plaintiff contends

he has been driven off the job and

terminated from employment due to hostile

working conditions in violation of his

First, Fifth, and Fourteenth Amendment

rights under the U.S. Constitution and in

violation of Article I, Sections 1, 2 and

7 of the California Constitution, and

Defendants deny the acts taken against

Plaintiff violates his constitutional

rights.

98. By reason of the foregoing, a

judicial declaration is both necessary

and proper in order to set forth and

determine the rights, obligations, and

liabilities, if any, of Plaintiffs and

Defendants and the defense and the

indemnity of the Defendants.

EQUITY

99. The plaintiff has no plain,

137

adequate or complete remedy at law to

redress the wrongs described herein.

Plaintiff has been, and will continue to

be, irreparably injured by the conduct of

the Defendants unless the court grants

the declaratory and injunctive relief

which Plaintiff seeks.

WHEREFORE Plaintiffs pray that the

court:

1. Enter a declaratory judgment

that the acts and omissions of Defendants

complained of violate Plaintiff RICHARD

ROCKWOOD'S rights under the First, Fifth,

and Fourteenth Amendments of the United

States Constitution and under Article I,

Sections l, 2, and 7 of the California

Constitution;

2. Order a permanent injunction

reinstating Plaintiff RICHARD ROCKWOOD to

his former position as Equipment

Superintendent with back pay in an amount

138

of the difference between what Plaintiff

would have earned and what he actually

earned with both prejudgment and post-

judgement interest;

3. Enter a permanent injunction

enjoining all of the defendants from

harassing, intimidating, retaliating, and

reprising against the Plaintiff in any

form whatsoever;

4. Enter punitive, compensatory,

and special damages in amounts to be

proved at the time of trial on both

causes of action;

5. Grant attorney's fees and costs

to Plaintiff RICHARD ROCKWOOD on both

causes of action.

DATED: November 2, 1988

PATRICIA J. BARRY

— kk =

139

—

Pee ee)

**AFFIRMED IN PART AND REVERSE IN PART**

Each Party To Bear Own Costs On Appeal.

Witness my hand and the seal of the State

affixed my office this Oct 1 1990

ROBERT N. WILSON, Clerk

Deputy Clerk

EXHIBIT 1

140

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.