Richter v. Ausmus ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JULIA RICHTER, Case No. 19-cv-08300-WHO 8 Plaintiff, ORDER ON MOTIONS FOR 9 v. SUMMARY JUDGMENT AND TO DISMISS 10 LISA AUSMUS, et al., Re: Dkt. Nos. 105, 164, 167 Defendants. 11 12 Defendants’ motion to dismiss and cross-motion for summary judgment are GRANTED in 13 part and DENIED in part. Plaintiff Julia Richter’s motion for summary judgment is DENIED. 14 For the reasons explained below, the only claims remaining in this case are Richter’s 42 U.S.C. 15 section 1983 claims for denial of procedural due process and violation of the Takings Clause; both 16 are based on the defendants’ apparent delay in processing her industrial disability retirement 17 (“IDR”) application. As noted below, the only damages that appear to be at issue – based on 18 Richter’s often-amended pleadings – are interest from the last day she was on the City of 19 Oakland’s payroll (around March 28, 2020) through the date her IDR benefits were granted (in 20 January 2023) and perhaps some limited other damages that plaintiff suffered as a result of the 21 City’s delay in processing her IDR application. 22 Given the significant narrowing of this case, proceedings are HEREBY STAYED until the 23 parties attend a settlement conference with Magistrate Judge Thomas S. Hixson. If it is 24 unsuccessful, the stay will be lifted to allow for three months of discovery followed by motions for 25 summary judgment and, if necessary, a trial. 26 BACKGROUND 27 I. ADMINISTRATIVE AND FACTUAL BACKGROUND 1 75, 115. Richter, a former employee of the Oakland Police Department (“OPD”), alleges two 2 primary sources of misconduct on the part of the defendants. First, she alleges that she was 3 injured on May 14, 2018 by the Oakland Police Department (“OPD”) and the City of Oakland (the 4 “City”) due to its indifference and violation of safety rules. Dkt. No. 76 (“Fourth Amended 5 Complaint” or “FAC”) ¶¶ 30, 38. Second, she asserts that she was subject to a wrongful 6 investigation in order to prevent her from obtaining disability retirement benefits (“Industrial 7 Disability Retirement” or “IDR”), which ultimately resulted in her termination. Id. ¶ 32. 8 When Richter initially filed this action, she had not yet been terminated and her IDR 9 application was still pending. Then in April 2020, Richter received a letter from defendant Falk, 10 then Oakland’s City Administrator, notifying her that she had been terminated as of March 28, 11 2020. Id. ¶ 40. A few weeks later, in May 2020, she received a letter from defendant Keith 12 Riddle, the Chief for the Disability and Survivor Benefits Division at CalPERS, notifying her that 13 her application for IDR benefits could not be accepted because she had been terminated for cause. 14 Dkt. No. 76-7 (“FAC, Ex. 8”). 15 Richter appealed the denial of her IDR benefits. Following a hearing before the Office of 16 Administrative Hearings (“OAH”), an Administrative Law Judge (“ALJ”) concluded that the City 17 should have processed Richter’s IDR application and failed to do so timely. Dkt. No. 164-5. 18 Applying principles of equity, the ALJ determined that Richter’s IDR application should be 19 processed by the City, despite her subsequent termination. Id. After Richter allowed the City 20 additional time to process her IDR application, the City eventually forwarded the application to 21 CalPERS, on January 13, 2023 and CalPERS approved Richter’s IDR application and paid her 22 IDR benefits back to March 28, 2020. Dkt. No. 167-1 (Declaration of Jocelyn Burton), Exs. 5, 7. 23 II. PROCEDURAL BACKGROUND 24 On March 30, 2020, I granted defendants’ initial motion to dismiss, dismissing plaintiff’s 25 without prejudice and with leave to amend the following claims: 26 • Substantive and Procedural Due Process claims (Eleventh, Twelfth, and Thirteenth causes 27 of action); 1 First and Second causes of action); 2 • Retaliation claims (Seventh, Eighth, and Ninth causes of action); 3 • Supervisory Liability claims (Fourteenth and Fifteenth causes of action); 4 • Claims under 42 U.S.C. § 1985 and §1986 (Fourth, Sixth, and Sixteenth causes of action); 5 • Negligent infliction of emotional distress, battery, and negligence claims (Eighteenth, 6 Nineteenth, and Twentieth causes of action). 7 I also dismissed the following claims WITH PREJUDICE: 8 • Claims regarding fabrication of evidence, Brady violations, malicious prosecution, and 9 making false public statements (Third, Fifth, Tenth, and Seventeenth causes of action); and 10 • A standalone cause of action for punitive damages. 11 See generally March 2020 Order, Dkt. No. 28.1 12 Plaintiff filed a Second Amended Complaint (“SAC”), and defendants moved again to 13 dismiss. In my July 2020 Order, I denied the request to dismiss Richter’s Fifth Cause of Action, 14 alleging a right to IDR benefits. July 2020 Order, Dkt. No. 47, at 8. I then explained how Richter 15 failed to cure the defects that led to my prior dismissal of most her claims and noted that Richter 16 had alleged additional claims in her SAC without leave to amend. Id. As a result, I dismissed 17 Richter’s Denial of Equal Protection claims (Seventh and Eighth causes of action). While I gave 18 Richter further leave to amend to allege facts to support her equal protection claim based on 19 disability discrimination, I dismissed her equal protection claim to the extent it was based on 20 gender or national origin discrimination as unsupported and implausible. Id. at 10-12. I dismissed 21 numerous other claims with prejudice.2 See generally July 2020 Order. 22 1 I denied Richter’s motion for reconsideration of the dismissal with prejudice of these claims. 23 Dkt No. 37. 24 2 The claims dismissed with prejudice were: (1) State-created Danger (First cause of action); (2) Excessive Force and Failure to Train (Second cause of action); (3) Criminal punishment (Third 25 cause of action); (4) Substantive Due Process/Fabrication of Evidence (Fourth cause of action); (5) Retaliation in violation of the First Amendment (Sixth cause of action); (6) Conspiracy claims 26 under 42 U.S.C. §1986 and failure to train or prevent under 42 U.S.C. §1985(3) Conspiracy (Ninth cause of action); (7) Fourteenth Amendment Procedural Due Process right arising under Police 27 Officers Bill of Rights (Cal. Gov. Code § 3300) and violation of Police Officer Bill of Rights 1 At that juncture, the only claims surviving were the equal protection based on disability 2 discrimination and substantive due process right to IDR claims. Id. After I repeatedly extended 3 the time for Richter to file her amended complaint, Richer filed her Third Amended Complaint on 4 September 29, 2020, and shortly thereafter she moved to further amend her complaint. Dkt. Nos. 5 54, 55. Defendants again moved to dismiss and to strike new claims and newly added defendants 6 that Richter was not given permission to add. In my November 2020 Order, Dkt. No. 65, I gave 7 Richter a choice; she could either proceed by filing a Fourth Amended Complaint limited to the 8 fifth (denial of IDR), seventh (denial of equal protection), and eighth (denial of equal protection) 9 causes of action asserted in the SAC as to the original defendants or Richter could file a motion 10 seeking leave to file a Fourth Amended Complaint to add the claims and parties she attempted to 11 include. 12 Richter chose to file a motion for leave, seeking to add twenty-four new claims and several 13 new defendants, and defendants opposed. Dkt. Nos. 68. 69. In my February 2021 Order, Dkt. No. 14 74, I concluded that most of the proposed new claims were futile and, accordingly, denied the 15 motion to amend as to those claims.3 However, I granted Richter’s motion in part, allowing the 16 following claims to proceed: (1) violation of § 1983 under the Fourteenth Amendment based on 17 denial of Procedural Due Process rights to IDR benefits (First cause of action); (2) violation of § 18 19 (Thirteenth cause of action). Id. These rulings removed from this case Richter’s claim for damages due to her physical injuries due to Oakland’s alleged indifference and violation of safety 20 rules. 21 3 The futile claims were (1) Violation of § 1983 Conspiracy to Deprive Plaintiff of Rights to Disability Pension, Public Employment and Liberty Interest in Public Employment, in Violation 22 of Due Process; (2) Federal and California Promissory Estoppel to Pay Disability Pension Upon Disability Injury; (3) Violation of Americans With Disabilities Act, Title II; (4) Violation of 23 §1983 based on Violation of Due Process Regarding Deprivation of Right to Public Employment, Benefits and Stigma Plus in Violation of Fourteenth Amendment; (5) Violation of § 1983 under 24 Fourteenth Amendment Due Process Right to be Free From State Created Danger & Right to Bodily Integrity; (6) violation of California’s Bane Act § 52.1 and Cal. Civ. Code § 52.3(a), Cal. 25 Gov. Code § 815.2; (7) Violation of Mandatory Duty Under Cal. Gov. Code §§ 21151-21157, Cal. Ins. Code § 10110.6, and Breach of Contract; (8) Violation of California APA and 5 U.S.C. § 26 702(1) By Failing to Make Disability Determination; (9) Fraudulent Inducement; (10) Breach of Fiduciary Duty; (11) California Disabled Persons Act; Unruh Civil Rights Act; (12) Violation of 27 28 U.S.C. § 2464 and 18 U.S.C. § 3282; and (13) Violation of Mandatory Duty Under 18 U.S.C. § 1 1983 under Equal Protection Clause based on disability discrimination (Third cause of action); (3) 2 violation of § 1983 based on Unlawful Taking of Disability Pension in Violation of Fifth and 3 Fourteenth Amendments (Fourth cause of action); and (5) violation of Cal. Gov. Code § 1094.5 4 and Request to Set Aside Unlawful Administrative Action (Twenty-Sixth cause of action). I also 5 limited the defendants remaining in the case to those involved only in each of those remaining 6 causes of action and expressly warned Richter that no further amendments would be permitted. 7 Dkt. No. 74 at 27. 8 Plaintiff filed her revised Fourth Amended Complaint (“FAC”) on March 16, 2021. Like 9 her prior amended complaints, the FAC contained more allegations, claims, and defendants than 10 Richter had been given leave to include. Dkt. No. 80. Defendants filed another round of motions 11 to dismiss and strike, and Richter filed a motion for leave to file a Fifth Amended Complaint. In 12 my July 2021 Order, given the fact that the parties acknowledged that Richter’s appeal of the 13 denial of her application for IDR was going to be heard at the OAH by an ALJ, I stayed the case 14 pending the final determination of Richter’s ability to apply for and receive IDR benefits. Dkt. 15 No. 115. I denied Richter’s motion for leave to amend to file additional claims and name 16 additional defendants and I stayed her request to further amend her equal protection claim. Id.4 17 In sum, at this juncture the only claims that are pending are: (1) violation of § 1983 under 18 the Fourteenth Amendment’s Procedural Due Process protection given Richter’s deprivation of 19 her IDR; (2) violation of § 1983 under the Fourteenth Amendment given the denial of Equal 20 Protection (including Richter’s pending motion to amend the bases for her Equal Protection claim 21 and add facts regarding disability discrimination); (3) violation of § 1983 under the Fifth and 22 Fourteenth Amendments based on an Unlawful Taking of her IDR benefits; and (4) violation of 23 Cal. Gov. Code § 1094.5 and Request to Set Aside Unlawful Administrative Action. 24 Also pending is the Oakland defendants’ motions to dismiss. In the July 2021 Order with 25 respect to Richter’s Section 1983 Due Process “right” to IDR benefits, I indicated that once the 26 ALJ hearing occurred “and has sufficient elements of due process, then it would seem that Richter 27 1 will have been afforded adequate process.” July 2021 Order at 7. On Richter’s Equal Protection 2 claim, I deferred the question of whether to grant Richter leave to add missing facts to support a 3 claim of denial of equal protection based on disability discrimination, as it was unclear what 4 impact if any the OAH/ALJ hearing might have on this claim. Id. at 8. On her Takings Claim, I 5 noted that Richter had plausibly alleged both a vested interest in her IDR benefits as well as an 6 improper withholding of those benefits, but noted that the final administrative decision had not 7 been made. Id. at 9. Finally, addressing the Cal. Govt. Code § 1094.5 claim, I rejected the 8 defendants’ argument that a Section 1094.5 claim could only be brought in state court and 9 expressly allowed Richter to assert that claim “to the extent it is challenging the administrative 10 actions relevant to Richter’s other remaining claims.” Id. at 9. But I noted that because final 11 administrative action had not yet occurred, there was no decision for Richter to challenge. Id. 12 Addressing Stanfield’s motion to dismiss, I noted that Younger abstention was not 13 warranted because this case was initiated before the state administrative proceedings. Id. at 10. I 14 also declined to reach the question of whether Richter had adequately alleged standing/harm 15 stemming from Stanfield’s actions, given that Richter’s injury depended on the OAH’s final 16 determination. Therefore, I stayed Stanfield’s motion to dismiss with respect to the standing 17 question. 18 After the ALJ determination requiring Oakland to process her IDR application, Richter 19 moved for an immediate answer on that IDR application. I denied that request in June 2022. Dkt. 20 No. 137. During this same timeframe, I denied Richter’s motion to disqualify me and held 21 numerous Case Management Conferences seeking to keep this case on track and ensure that 22 Oakland and CalPERS were moving forward on Richter’s application. See Dkt. Nos. 139, 146, 23 150, 154. 24 On December 21, 2022, Richter moved for partial summary judgment on the issue of 25 industrial disability retirement. Dkt. No. 155. That motion was denied “without prejudice as 26 premature in advance of the final determination by CalPERS.” Dkt. No. 161. Following the grant 27 of her IDR benefits, Richter again filed a motion for partial summary judgment on the issue of 1 efficient way forward, and discussing their perspectives during a January 2023 Case Management 2 Conference, I identified “the core remaining issue as whether Ms. Richter has a cognizable claim 3 for damages resulting from the City’s delay.” Dkt. No. 165. I noted Richter’s pending motion for 4 partial summary judgment and Stanfield’s pending motion to dismiss, and set a briefing schedule 5 on each, including a cross-motion for summary judgment by the City. Id. I explained that “[i[f 6 any party believes that additional discovery is necessary to defend against any motion, they shall 7 include the reasons why it is necessary in their opposition to said motion.” Id. 8 Now before me are Richter’s motion for partial summary judgment, the City of Oakland 9 defendants’ cross-motion for summary judgment, and Stanfield’s renewed motion to dismiss. 10 LEGAL STANDARD 11 I. MOTION TO DISMISS 12 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 13 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 14 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 15 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when 16 the plaintiff pleads facts that “allow[ ] the court to draw the reasonable inference that the 17 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 18 (citation omitted). There must be “more than a sheer possibility that a defendant has acted 19 unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff 20 must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 21 U.S. at 555, 570. 22 In deciding whether a claim has been stated upon which relief can be granted, the court 23 accepts all factual allegations as true and draws all reasonable inferences in favor of the 24 plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). “[A]llegations that are 25 merely conclusory, unwarranted deductions of fact, or unreasonable inferences,” however, need 26 not be “accept[ed] as true.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) 27 (internal quotation omitted). 1 If the court dismisses a complaint, it “should grant leave to amend even if no request to 2 amend the pleading was made, unless it determines that the pleading could not possibly be cured 3 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 4 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). In making this determination, 5 the court should consider factors such as “the presence or absence of undue delay, bad faith, 6 dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to 7 the opposing party and futility of the proposed amendment.” Moore v. Kayport Package Express, 8 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). 9 II. MOTION FOR SUMMARY JUDGMENT 10 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 11 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 12 law.” Fed. R. Civ. P. 56(a). To prevail, a party moving for summary judgment must show the 13 absence of a genuine issue of material fact with respect to an essential element of the non-moving 14 party’s claim, or to a defense on which the non-moving party will bear the burden of persuasion at 15 trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this 16 showing, the burden then shifts to the party opposing summary judgment to identify “specific facts 17 showing there is a genuine issue for trial.” Id. The party opposing summary judgment must then 18 present affirmative evidence from which a jury could return a verdict in that party’s favor. 19 Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986). 20 On summary judgment, the court draws all reasonable factual inferences in favor of the 21 non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility 22 determinations, the weighing of the evidence, and the drawing of legitimate inferences from the 23 facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony 24 does not raise genuine issues of fact and is insufficient to defeat summary judgment. See 25 Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). 26 DISCUSSION 27 I. STANFIELD’S MOTION TO DISMISS 1 • He “was [] personally involved City Attorney for the City of Oakland. Stanfield advised 2 Falk and others not to follow Cal. Gov. Code §21151-21157, Cal. Ins. Code §10110.6, or 3 the 14th Amendment, thus materially contributing to constitutional violations described in 4 this Complaint.” FAC ¶ 15. 5 • “On July 27, 2019 Julia asked Oakland City Attorney Gregory Stanfield whether the City 6 has all the medical documents, and if there is anything else that prevents him from making 7 the disability determination. On July 29, 2019, Stanfield replied that Julia’s industrial 8 disability retirement application and its processing is ‘awaiting the finalization of the 9 internal affairs investigation and its conclusion/results.’ (EXHIBIT 6). Stanfield is 10 personally liable for denying processing Julia’s disability application.” FAC ¶ 65; see also 11 ¶ 70. 12 • Defendants Falk, Kasaine, Stanfield, Trinh, Jenkins, Byrd-Salas, Riddle (Defendants #1) 13 individually took part in intentionally failing to timely certify Julia’s disability and to retire 14 Julia.” FAC ¶ 113. 15 • “As of July 27, 2019, Oakland City Attorney Stanfield wrote to Julia that the investigation 16 has not been completed. The City of Oakland presented Julia with ‘completed’ report of 17 investigation on October 1, 2019, which is over one month past Cal. Gov. Code 3304(d)(1) 18 one-year Statute of Limitation.” FAC ¶ 153. 19 • “Stanfield advised Kasaine and Falk on the ways to deprive Julia of her employment 20 benefits.” FAC ¶ 227. 21 In his motion to dismiss, Stanfield contends that he is an attorney at a private law firm who 22 was retained by the City to provide a non-litigation assessment of the City’s disability retirement 23 program. Dkt. No. 105. In his Supplemental Brief, Stanfield contends that CalPERS has the “sole 24 authority to accept or deny the IDR application.” Supp. Br., Dkt. No. 168 at 3. Stanfield also 25 asserts that his “only role was to provide assessment on the internal procedures for the City’s 26 processing of disability retirement benefits. Stanfield does not make decisions on individual 27 applications for retirement benefits.” Id. 1 under the Younger doctrine given the administrative proceedings. He also contended Richter lacks 2 standing to assert her claims against him because there is no causal chain between Stanfield’s 3 limited actions on behalf of Oakland and Richter’s alleged harms. 4 In my July 2021 Order, I rejected the Younger argument and deferred ruling on the 5 standing issue because Richter’s IDR application was still pending. July 2021 Order, Dkt. No. 6 115.5 In his Supplemental Brief, Stanfield reasserts the lack of standing argument: namely, that 7 whatever role Stanfield had with Oakland’s initial processing of Richter’s IDR application – the 8 application that was not timely processed and was cancelled and not sent to CalPERS because of 9 Richter’s termination – any causal chain was cut off because there are no facts alleged that 10 Stanfield had any input in or control over what CalPERS did and CalPERS has the “sole authority 11 to accept or deny the IDR application.” Supp. Br., Dkt. No. 168 at 3. Stanfield also asserts that 12 his “only role was to provide assessment on the internal procedures for the City’s processing of 13 disability retirement benefits. Stanfield does not make decisions on individual applications for 14 retirement benefits.” Id. 15 Richter, however, has made allegations and attached emails to her complaint (that are 16 subject to judicial notice) showing that Stanfield was aware of Richter’s IDR application and may 17 have played a role in holding up the processing of the application until the internal investigation 18 into misconduct was concluded by Oakland. See, e.g., FAC, Ex. 6. Because this is a motion to 19 dismiss, and there is no basis to take judicial notice or otherwise rely on the contentions Stanfield 20 makes in his Motion and Supplemental Brief. 21 Stanfield raises an additional argument in his Supplemental Brief that Richter’s claim 22 against him as an attorney hired by Oakland is barred under “the McDermott doctrine.” See 23 McDermott, Will & Emery v. Superior Court, 83 Cal.App.4th 378, 381 (Cal.App.2.Dist) 24 (recognizing that “a derivative lawsuit for malpractice against corporate outside counsel raises 25 unique attorney-client privilege issues” because the “absence of a waiver by the corporate client, 26 27 5 Stanfield also initially argued and argues in his Supplemental Brief that Richter’s claims for 1 the third party attorney is effectively foreclosed from mounting any meaningful defense to the 2 shareholder derivative action.”). But this is not a case where a plaintiff’s claim is obviously 3 premised on attorney-client protected information. And even if it were, before dismissing a claim 4 under this doctrine a trial court must consider “the interests of a plaintiff in bringing a potentially 5 meritorious claim that is not premised on confidential information, in the course of determining 6 whether a defendant's right to present a defense premised on confidential information requires 7 dismissal of the claim.” Dietz v. Meisenheimer & Herron, 99 Cal.Rptr.3d 464, 480, 177 8 Cal.App.4th 771, 791 (Cal.App. 4 Dist., 2009) (emphasis in original). What, if any, information 9 possessed by Stanfield might be protected by the attorney-client interest is unclear. For example, 10 advice he gave Oakland might be protected but information about his acts and his communications 11 with Richter would likely not be protected. In his Supplemental Brief, Stanfield fails to identify or 12 address the four factors that courts weigh to determine whether a case is barred under McDermott.6 13 I cannot dismiss Richter’s claims against Stanfield on this basis at this juncture. 14 Finally, Stanfield argues that the claims against him are moot now that Richter has 15 received her IDR benefits, retroactive to the last day she was on Oakland’s payroll in 2020. 16 However, simply because she received the IDR benefits does not mean her other claims are moot 17 given the allegations of improper handling and delay. 18 Stanfield’s motion to dismiss is DENIED, except with respect to Richter’s claims for 19 denial of Equal Protection and violation of California Code of Civil Procedure § 1094.5 discussed 20 below. 21 II. CROSS-MOTIONS FOR SUMMARY JUDGMENT 22 A. Due Process Right to IDR 23 The Oakland defendants argue that summary judgment is warranted in their favor (and 24 Stanfield argues his motion to dismiss should be granted) because Richter received adequate 25 26 6 Those factors are: (1) whether the evidence is the client’s confidential information, and the client is insisting that the information remain confidential; (2) whether the information is “highly 27 material” to the claim; (3) whether “ad hoc” measures, including sealing and limited admissibility, 1 procedural process – the right to be heard – on her IDR application after she eventually made it to 2 the OAH and the ALJ ruled in her favor. To state a procedural due process claim, a plaintiff must 3 allege “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the 4 interest by the government; [and] (3) lack of process.” Wright v. Riveland, 219 F.3d 905, 913 (9th 5 Cir. 2000). “‘The Fourteenth Amendment’s procedural protection of property is a safeguard of the 6 security of interests that a person has already acquired in specific benefits.’” See Armstrong v. 7 Reynolds, 22 F.4th 1058, 1066–67 (9th Cir. 2022) (quoting Bd. of Regents of State Colleges v. 8 Roth, 408 U.S. 564, 576 (1972)). “Key to a property interest determination is whether the person 9 alleging a due process violation has an entitlement to the benefit at issue.” Armstrong, 22 F.4th at 10 1067. 11 The essence of Richter’s claim is that she was deprived of access to the IDR benefits when 12 the defendants’ delayed processing of her initial IDR application and then cancelled that 13 application (and failed to send it to CalPERS) because they intended to terminate her employment 14 and thereby avoid paying IDR benefits. In my February 2021 Order, I noted that if Richter could 15 show that Oakland’s decision to terminate her for cause was made to prevent her from obtaining 16 disability benefits, she might be able to claim a procedural due process violation. See, e.g., Dkt. 17 No. 74 at 5-6. 18 Defendants argue that because Richter has now secured her benefits, any process to which 19 she was entitled has been satisfied and this claim fails as a matter of law. Defendants, however, 20 cite no cases in support of that proposition and fail to address Richter’s claim that the improper 21 delay in process creates liability and damages, including the interest due on the benefits that were 22 eventually paid or for other damages she incurred during the long fight to have Oakland process 23 her IDR application. For those reasons, the motions for summary judgment and to dismiss this 24 claim are DENIED. 25 B. Equal Protection 26 In the operative FAC, Richter alleges that she was denied equal protection on the basis of 27 her disability when the City delayed processing her IDR application so it could find a way to deny 1 omitted facts regarding equal protection in her FAC, but then attempted to add the facts back in in 2 her proposed Fifth Amended Complaint. Dkt. No. 115.7 I deferred ruling on the motion to 3 include those facts back into the operative complaint, but for purposes of the pending motions, I 4 assume that they are included in the operative complaint. As I indicated in my July 2021 Order, 5 all of the facts she identifies regarding purported disability discrimination are “conclusory and 6 speculative.” See July 2021 Order at 7-8. Despite multiple opportunities to allege sufficient facts, 7 Richter failed to identify which of the individual defendants (Ausmus, Mork, Millington, 8 Kirkpatrick, Joshi, Allison or Falk) referred her but not her co-worker for an internal investigation 9 (that led to Richter’s termination) and Richter alleged no facts connecting the internal OPD 10 investigation to any conduct by Stanfield or Kassine. Id. 11 These defects obviously remain. Unequal treatment based on disability still has not been 12 adequately alleged against any of the individual defendants.8 Considering Richter’s allegations in 13 a light most favorable to her, she alleges that Oakland delayed processing her IDR application in 14 order to manufacture a reason to terminate her and avoid paying IDR benefits. Those allegations 15 plausibly support a claim that Oakland was trying to get out of paying her IDR benefits. That is a 16 plausible fiscal motive, not a disability discrimination motive. There are no facts alleged, despite 17 Richter’s numerous amended complaints and repeated attempts to amend further, that indicate any 18 individual defendant acted with animus or made comments to her that could plausibly support a 19 claim of discrimination because of disability. 20 7 In the proposed Fifth Amended Complaint, Richter alleges that Ausmus, Mork, Millington, 21 Kirkpatrick, Joshi, Allison, and Falk, as the City’s investigative unit, treated Richter differently from other citizens OPD investigated on suspicion of criminal activity. Dkt. No. 80 ¶ 76. After 22 Ausmus, Mork, Millington, Kirkpatrick and the City “became aware of [her] permanent work injury and her intent to apply for disability retirement, they began scrutinizing her in an apparent 23 attempt to disallow her disability claim.” Id. ¶ 111. And one defendant—who Richter only identifies as “Doe”—referred Richter “for an internal investigation for allegedly missing property, 24 while her non-disabled coworker was not investigated.” Id. Richter also alleges that in March 2019, her attorney “received a tip from an Oakland city employee . . . that the City wants to 25 terminate Julia so that the City of Oakland would not have to pay her disability retirement.” Id. ¶ 112. 26 8 This is consistent with Stanfield’s Supplemental Motion to Dismiss brief, where Stanfield argues 27 Richter’s equal protection based on disability claim should be dismissed as to him because Richter 1 Richter has had multiple opportunities to plead her equal protection claim. At this 2 juncture, summary judgment is granted to the defendants on this claim and it is dismissed from 3 this case WITH PREJUDICE. 4 C. Takings Clause 5 The defendants also move to dismiss or seek summary judgment on Richter’s Takings 6 Clause claim. They argue that any possible claim is mooted because Richter has received her IDR 7 benefits, with back pay to the last day she was on the City’s payroll. 8 The defendants assert, first, that Richter’s entitlement to IDR benefits was not “vested” 9 before the IDR application was processed by Oakland and granted by CalPERS (following the 10 ALJ decision requiring Oakland to finally process the application). See Angelotti Chiropractic, 11 Inc. v. Baker, 791 F.3d 1075, 1081 (9th Cir. 2015) (because the right to workers' compensation 12 benefits is “wholly statutory,” such rights are not vested until they are “reduced to final 13 judgment.”). Richter relies on Knudson v. City of Ellensburg, 832 F.2d 1142 (9th Cir. 1987), but 14 there, the court was considering Washington State statutes and caselaw that provided, the 15 “statutory right to the disability medical benefit likewise vested when she suffered disabling injury 16 while employed by the City. Once vested, her benefit could not be cut off by her work discharge.” 17 Id. at 1146. The defendants here rely on Quintana v. Bd. of Admin., 54 Cal. App. 3d 1018, 1022 18 (Cal. Ct. App. 1976) where the court acknowledged that “the contingency that would give rise to a 19 right to receive pension payments is the existence of a disability and in one sense that right is not 20 ‘vested’ until the disability is established in the appropriate administrative proceedings.” Id. at 21 1022 (quoting Brophy v. Employees Retirement System, 71 Cal.App.2d 455). The Quintara court 22 noted that because of the significance of the determination of whether someone is disabled, the 23 “fundamental vested right” to a disability pension meant a claimant should receive “independent 24 judicial review” of an adverse pension board determination. Id. at 1023. 25 Defendants also argue, assuming that there was some vested right to apply for or receive 26 IDR benefits, there has been no uncompensated taking because benefits have been awarded. But 27 defendants do not engage with and ignore the Supreme Court cases cited by Richter that recognize 1 “the compensation must generally consist of the total value of the property when taken, plus 2 interest from that time.” Knick v. Township of Scott, Pennsylvania, 139 S.Ct. 2162, 2170 (2019). 3 Defendants point out that Richter alleges the taking occurred in 2018, but because Richter 4 remained on the City’s payroll until 2020, there could not have been any taking. That argument 5 may cut off any right or interest until 2020, but defendants ignore the obvious gap between 2020 6 when Richter was terminated and 2023 when IDR benefits were awarded. 7 On this record, and given defendants’ failure to cite cases showing that Richter’s Takings 8 Clause claim, including interest damages, is foreclosed as a matter of California law, the motions 9 to dismiss or for judgment on this claim are DENIED. 10 D. California Code of Civil Procedure § 1094.5 11 Defendants argue that they are entitled to summary judgment or to dismiss Richter’s claim 12 for relief under California Code of Civil Procedure § 1094.5 because the claim is “only applicable 13 to state courts.” Oak. Oppo. at 14; Stanfield Supp. Br. at 10. Defendants, apparently, fail to 14 remember that in my February and July 2021 Orders, I concluded that under Ninth Circuit 15 precedent a section 1094.5 claim could be asserted in federal court. Dkt. No. 74 at 27; Dkt. No. 16 115 at 9. 17 As noted in my February 2021 Order, however, Richter alleged a violation of this 18 provision in order to challenge an administrative decision. Id. at 27. That decision – by the OAH 19 on her IDR application – has now been rendered. Richter does not argue that anything the ALJ 20 did was wrong or otherwise make an argument that any continued relief under this section is 21 sought or warranted. Summary judgment is therefore granted to defendants on Richter’s § 1094.5 22 claim. 23 E. New Theories of Liability/Damages 24 In her motion for partial summary judgment, Dkt. No. 164, Richter alleges new theories of 25 liability or sources of damages with respect to defendants’ actions. 26 1. CalPERS Formula 27 Richter argues that Oakland’s delay in processing her IDR application means that a change 1 amount of benefits than she would have if Oakland had forwarded her application to CalPERS 2 back in 2018 or 2019. Dkt. No. 164 at 2. She quotes what she describes as a provision of the 3 “California Pension Reform Act” that “adds a calculation for a safety member who qualifies for an 4 IDR that may result in a higher benefit than 50 percent of salary.” Id. Oakland disputes that 5 contention, arguing there has been no change in CalPERS’ formulas that would impact the 6 calculation of Richter’s benefits and citing California Government Code § 21400.9 7 The formula that should be used to determine Richter’s IDR benefits is a matter between 8 Richter and CalPERS. Her new arguments are not appropriately resolved by me, considering that 9 they are not pleaded in the FAC and are not connected to any remaining cause of action. If Richter 10 disputes the amount of her payments, the presumable recourse is through the OAH/ALJ process 11 that Richter pursued in the first instance to require Oakland to process her IDR application. 12 2. Cal. Govt. Code § 815.6 13 In her motion for partial summary judgment, Richter attempts to reallege her theory that 14 under California Government Code § 815.6, defendants had a mandatory duty to provide her 15 benefits under Government Code §§ 21151-21157. Dkt. No. 164 at 5-9. That provision provides: 16 Mandatory duty of public entity to protect against particular kinds of injuries 17 Where a public entity is under a mandatory duty imposed by 18 an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind 19 proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to 20 discharge the duty. 21 Cal. Govt. Code § 815.6. Richter argues under California Government Code sections 21151- 22 23 9 Cal. Govt. Code § 21400 (“Safety member retiring on or after Jan. 1, 2013 for industrial disability; disability retirement benefit [] A safety member who retires on or after January 1, 2013, 24 for industrial disability shall receive a disability retirement benefit equal to the greater of the following: (a) Fifty percent of the member's final compensation, plus an annuity purchased with 25 their accumulated additional contributions, if any. (b) A service retirement allowance, if the member is qualified for service retirement. (c) An actuarially reduced factor, as determined by the 26 actuary, for each quarter year that the member's service age is less than 50 years, multiplied by the number of years of safety service subject to the applicable formula, if the member is not qualified 27 for service retirement. (d) Nothing in this section shall require a member to receive a lower benefit 1 21157 that Oakland was under a mandatory duty to process her disability application and forward 2 it to CalPERS. 3 Defendants point out that in order to seek damages under this provision that exempts 4 government entities from immunity for negligent mandatory acts, a claim must be filed. There is 5 no allegation that Richter has filed such a claim. Even more problematic is that Richter attempted 6 to allege a mandatory duty claim in a prior round of motions and I denied leave to amend to 7 include it. See February 2021 Order at 18-19, 25. Richter cannot attempt to reallege this rejected 8 claim. 9 3. Breach of Contract 10 Richter argues she is a third-party beneficiary of the City-Union contract as well as the 11 City-CalPERS contracts, allowing her to sue for their breach by Oakland’s acts. Dkt. No. 164 at 12 8-9. I denied leave to amend to state a breach of contract claim in my February 2021 Order. Dkt. 13 No. 74 at 18-19. This claim may not be realleged. 14 4. Promissory Estoppel 15 Richter similarly alleges that she has a promissory estoppel claim based on the City’s duty 16 to retire her within 6 months under Cal. Govt. Code §§ 21151-21157, which the City failed to do. 17 Richter says that she relied on the City’s statutory “promise” to do so. Dkt. No. 164 at 10-11. I 18 denied leave for Richter to allege this claim in my February 2021 Order. Dkt. No. 74 at 13-14. It 19 may not be realleged. 20 5. Breach of Fiduciary Duty 21 Similarly, Richter’s Breach of Fiduciary Duty arguments in her motion, Dkt. No. 164 at 22 11, were blocked from the case in my February 2021 Order. Dkt. No. 74. At 21-24. They may 23 not be realleged. 24 6. Interest, damages, and penalties 25 Finally, in her motion for partial summary judgment, Richter seeks an award of pre- and 26 post-judgment interest, as well as court costs and damages. Richter Mot. at 2, 12. I cannot award 27 interest on anything other than a judgment that I might enter if and when Richter’s prevails on a 1 identified any statute or rule that entitled her to an award of penalties at this juncture. 2 CONCLUSION 3 Richter’s motion for partial summary judgment is DENIED. The Oakland defendants and 4 || Stanfield’s motions for summary judgment or to dismiss are GRANTED with respect to Richter’s 5 || claims of denial of equal protection and violation of California Code of Civil Procedure § 1094.5 6 || but otherwise denied. The only claims remaining in this case are 42 U.S.C. section 1983 claims 7 for denial of procedural due process and violation of the Takings Clause; both based on the 8 || defendants’ apparent delay in processing her industrial disability retirement (“IDR”) application. 9 This case is STAYED until the parties attend a settlement conference with Magistrate Judge 10 || Thomas S. Hixson. As I indicated at the Case Management Conference, if the parties cannot 11 resolve this case with Judge Hixson, I will allow three months of discovery and set the case for 12 || trial. 13 IT IS SO ORDERED. 14 |] Dated: April 6, 2023 . 5 illiam H. Orrick | nited States District Judge 18 19 20 21 22 23 24 25 26 27 28