Filed 6/3/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PATRICIA MCALLISTER, B244759
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC484767)
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County. Rita
Miller, Judge. Affirmed.
Julie A. Esposito for Plaintiff and Appellant.
Alexander A. Molina for Defendants and Respondents.
Patricia McAllister (appellant) appeals from a final judgment entered after the trial
court sustained a demurrer to each of appellant‟s causes of action against respondents
Los Angeles Unified School District (LAUSD) and John E. Deasy (Deasy),
superintendent of LAUSD (collectively “respondents”). We affirm the judgment.
CONTENTIONS
Appellant contends that the trial court erred in sustaining the demurrer to her third
cause of action claiming a deprivation of rights under section 1983 of title 42 of the
United States Code (hereafter section 1983). Although appellant concedes that the trial
court properly sustained the demurrer as to LAUSD and Deasy in his official capacity,
she argues that she should be permitted to amend her complaint to state this cause of
action against Deasy in his individual capacity.
Appellant further contends that the trial court erred in sustaining a demurrer to her
second cause of action alleging a private claim for relief under article I, section 2,
subdivision (a) of the California Constitution (hereafter Constitution, section 2(a)).
Appellant argues that the trial court‟s broad ruling that there is no private cause of action
under section 2(a) is incorrect.
Next, appellant contends that the demurrer was not properly sustained as to her
tort claims for wrongful discharge and infliction of emotional distress. Appellant argues
that, contrary to the trial court‟s ruling, these causes of action are not impermissible under
California Government Code section 815.
Finally, appellant contends that punitive damages are properly recoverable under
section 1983 against an individual who is found to have acted with reckless or callous
indifference in depriving appellant of her constitutional rights.
BACKGROUND
1. The complaint
Appellant filed her first amended complaint against respondents on May 22, 2012,
alleging wrongful termination; deprivation of rights under the Constitution, section 2(a);
violation of section 1983 for deprivation of rights under the First Amendment to the
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United States Constitution; breach of implied contract; breach of covenant of good faith
and fair dealing; and negligent infliction of emotional distress.
Appellant is a credentialed teacher in mathematics and a permitted substitute
teacher. LAUSD is an entity which controls and operates public elementary and
secondary schools within the City and County of Los Angeles, California. Deasy is the
duly appointed and acting superintendent of LAUSD and is responsible for overseeing all
educational and administrative issues for LAUSD.
Beginning about April 14, 2006, appellant was employed by LAUSD as a
substitute teacher for mathematics and general education subjects. On May 4, 2011,
LAUSD made an offer of continued employment to appellant for the school year
beginning September 2011 and ending June 2012 as an on-call substitute teacher.
As of October 12, 2011, appellant was scheduled to begin a substitute assignment
at Ramon C. Cortines School of Visual and Performing Arts on November 4, 2011.
On Wednesday, October 12, 2011, appellant attended a public rally at Los Angeles
City Hall. The rally was part of a movement known as “Occupy Los Angeles.”
Appellant attended because of her opposition to cuts in education. During the rally,
appellant was approached by a reporter for Reason.TV who asked for an interview.
Appellant identified herself and disclosed that she worked for LAUSD. She stated she
was at the rally “„representing herself.‟” During the course of the interview, appellant
made the following comment: “„I think that the Zionist Jews who are running these big
banks and our Federal Reserve, which are not run by the federal government, they need
to be run out of this country.‟”
A video of the interview was posted on the Reason.TV website. It was also
uploaded to YouTube.com, and was widely viewed.
Beginning the morning of October 14, 2011, appellant began receiving telephone
calls from unidentified people berating and condemning her for the statements which
were repeated on the videos available on the internet. During this weekend, appellant
viewed the internet video and saw comments posted urging people to call LAUSD and
demand that appellant be fired.
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On Tuesday, October 18, 2011, appellant called the LAUSD “Subfinder”
automated telephone system to check on her scheduled teaching assignment for
November 4, 2011, at Ramon C. Cortines School of Visual and Performing Arts.
However, when she attempted to log in, the system rejected her request. The automated
Subfinder system message said that her status was inactive, and that she should call her
supervisor.
Appellant then called the Ceritificated Substitute Unit of LAUSD to inquire as to
why her status was inactive. Appellant spoke with Marjorie Josaphat who told appellant
to call Dr. Ira Berman, LAUSD‟s director of employee relations. Appellant called Dr.
Berman. He told her to come to his office right away.
Appellant arrived at LAUSD central offices at 1:00 p.m. on October 18, 2011, and
proceeded to Dr. Berman‟s office. Dr. Berman informed appellant that her employment
with LAUSD was terminated. She was given no reason when she asked Dr. Berman why
her employment was terminated, but was told that she should contact Deasy.
Before she could speak to Deasy, appellant saw a news report of a statement
Deasy had released to the press and media. The statement read as follows:
“As Superintendent of the Los Angeles Unified School District
(LAUSD), I want to emphasize that we condemn the remarks made recently
by Patricia McAllister. Her comments, made during non-work time at a
recent protest rally, were her private opinions and were not made in the
context of District services. At LAUSD, we recognize that the law is very
protective of the freedom of speech rights of public employees when they
are speaking as private citizens during non-working time.
“I further emphasize to our students, who watch us and look to us for
guidance, to be role models and to represent the ideals by which LAUSD
lives, that we will never stand for behavior that is disrespectful, intolerant
or discriminatory.
“As a day-to-day substitute teacher, Ms. McAllister was an at-will
employee. As of today, she is no longer an employee of the LAUSD.”
On October 20, 2011, appellant received by certified mail a letter dated October
18, 2011, from LAUSD signed by Vivian K. Ekchian. The letter read that “„you are to be
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separated from employment with the Los Angeles Unified School District effective the
date of this letter.‟”
On or about December 2, 2011, pursuant to the requirements of the California Tort
Claims Act, as codified in Government Code section 910 et seq., appellant prepared a
form outlining her claim against LAUSD. In the form, appellant asserted she had been
fired as a result of an interview she gave at an “Occupy Los Angeles” rally. Appellant
further asserted the termination was in violation of her First Amendment right to freedom
of speech.
On December 13, 2011, appellant received notification from LAUSD that her
claim had been rejected, and that she had six months to file a court action on the rejected
claim.
Appellant alleges she has suffered and continues to suffer damages as a result of
the termination of her employment. She further alleges that Deasy made the decision to
terminate appellant‟s employment, that he did so within the course and scope of his
employment and duties as superintendent of LAUSD, and that he was acting pursuant to
the policies, practices, directives and procedures of LAUSD.
2. The trial court proceedings
On June 22, 2012, respondents filed a demurrer to appellant‟s first amended
complaint. Respondents argued that appellant‟s wrongful termination and negligent
infliction of emotional distress claims failed as a matter of law because Government
Code section 815, subdivision (a), abolished all common law or judicially declared
liability for public entities. As to appellant‟s cause of action under the Constitution,
section 2(a), respondents argued that it should be dismissed because there is no private
right of action under this provision. Respondents also argued that appellant could not
state a prima facie case under section 1983 against LAUSD or its employees because it is
well established that the state, and state officials sued in their official capacities, are not
“persons” who may be liable under this statute. (Will v. Michigan Dept. of State Police
(1989) 491 U.S. 58 (Will).) In addition, respondents argued that they were immune
pursuant to Government Code section 820.2, which provides that:
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“Except as otherwise provided by statute, a public employee is not
liable for an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in him,
whether or not such discretion be abused.”
Finally, respondents argued that LAUSD cannot be held liable for punitive
damages under Government Code section 818, which provides that:
“Notwithstanding any other provision of law, a public entity is not
liable for damages awarded under Section 3294 of the Civil Code or other
damages imposed primarily for the sake of example and by way of
punishing the defendant.”
Since no conduct was alleged on the part of Deasy that would support a claim of
punitive damages, respondents argued that the claim should also fail as to Deasy.
Appellant opposed the demurrer. She argued that respondents are liable for the
wrongful termination and negligent infliction of emotional distress tort claims under
Government Code section 815.2, and that constitutional torts are not barred by the
Government Claims Act. Appellant further argued that she has a private cause of action
under the Constitution, section 2(a) because an analysis of the pertinent factors dictates in
favor of the recognition of a cause of action. Appellant further argued that Deasy was
liable under section 1983 as an individual, and that neither Deasy nor LAUSD was
immune from suit under Government Code section 820.2.
Respondents filed a reply brief, and the matter was heard on September 10, 2012.
The trial court‟s detailed tentative decision reveals its reasoning. As to the wrongful
termination and negligent infliction of emotional distress causes of action, the trial court
agreed with respondents that such common law causes of action do not lie against a
public entity such as LAUSD. (Gov. Code, § 815, subd. (a).) As to the claim under the
Constitution, section 2(a), the trial court held that “the „freedom of speech‟ provisions of
the California constitution do not give rise to a private right of action,” citing Katzberg v.
Regents of University of California (2002) 29 Cal.4th 300 (Katzberg) and Degrassi v.
Cook (2002) 29 Cal.4th 333 (Degrassi).
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Citing Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83 Cal.App.4th
1098, 1115 (Kirchmann), the trial court held that LAUSD and Deasy, acting for LAUSD,
should be considered state entities and therefore not subject to liability under section
1983. The trial court noted that appellant claimed she could state a prima facie case
against Deasy under section 1983 for acts in his individual, rather than official, capacity.
The court was inclined to allow appellant to make an offer of proof at the hearing, setting
forth the facts which she believed supported her argument that Deasy was acting in his
individual capacity. The court noted, “[o]f course, [appellant] may not contradict the
judicial admissions in her complaint as to the allegations in the existing complaint that he
was acting within the scope and course of his employment and pursuant to LAUSD
policies.” The trial court found the issue of punitive damages to be moot in light of its
decision to sustain the demurrer on all other causes of action.
Judgment in accordance with the tentative decision was filed on October 3, 2012.
On October 23, 2012, appellant filed her notice of appeal.
DISCUSSION
I. Standard of review
“On appeal from a judgment dismissing an action after sustaining a demurrer
without leave to amend, the standard of review is well settled. The reviewing court gives
the complaint a reasonable interpretation, and treats the demurrer as admitting all
material facts properly pleaded. [Citations.] The court does not, however, assume the
truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be
affirmed „if any one of the several grounds of demurrer is well taken. [Citations.]‟
[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff
has stated a cause of action under any possible legal theory. [Citation.] And it is an
abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows
there is a reasonable possibility any defect identified by the defendant can be cured by
amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-
967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair
Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
7
“When reviewing a demurrer on appeal, appellate courts generally assume that all
facts pleaded in the complaint are true. [Citation.]” (Cantu v. Resolution Trust Corp.
(1992) 4 Cal.App.4th 857, 877, fn. omitted.) While a plaintiff must be allowed to amend
a complaint if there is a reasonable possibility that the plaintiff can rectify any defect, “[a]
plaintiff may not avoid demurrer by pleading facts or positions in an amended complaint
that contradict the facts pleaded in the original complaint or by suppressing facts which
prove the pleaded facts false. [Citation.]” (Ibid.)
Bearing these standards in mind, we review the causes of action before us in this
appeal.
II. Claim under section 1983
A. Applicable law
Section 1983 “creates a cause of action in favor of „the party injured‟ against
„[e]very person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State . . . , subjects, or causes to be subjected, any . . . person . . . to the deprivation
of any rights . . . secured by the Constitution and laws . . . .‟ (42 U.S.C. § 1983).”
(County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 297.)
Section 1983 is not itself a source of substantive rights, “„but merely provides “a
method for vindicating federal rights elsewhere conferred.”‟ [Citations.]” (County of Los
Angeles v. Superior Court, supra, 21 Cal.4th at p. 297.) It allows actions against state or
local officials for actions that have violated constitutional rights. (Manta Management
Corp. v. City of San Bernardino (2008) 43 Cal.4th 400, 406.)
There are two essential elements of a claim under section 1983, (1) the conduct
complained of was committed by a person acting under color of state law; and (2) the
conduct deprived the plaintiff of a right, privilege or immunity secured by the
Constitution or laws of the United States. (Vergos v. McNeal (2007) 146 Cal.App.4th
1387, 1402.)
However, a state, an entity acting as an “arm of the state,” or a state official sued
in his official capacity may not be considered a “person” who may be liable under section
1983. (Will, supra, 491 U.S. at p. 71; see also Kirchmann, supra, 83 Cal.App.4th at p.
8
1115 [California school district as an “arm of the state” was not subject to liability under
section 1983 claim]; Belanger v. Madera Unified School Dist. (9th Cir. 1992) 963 F.2d
248 [former principal‟s claim that she was demoted to teacher in violation of section
1983 was properly dismissed because California school districts are agents of the state].)
“Suits against state officials in their official capacity . . . should be treated as suits
against the State. [Citation.]” (Hafer v. Melo (1991) 502 U.S. 21, 25 (Hafer).) Thus, an
official sued in his official capacity is not subject to liability under section 1983.
However, “officers sued in their personal capacity come to court as individuals. A
government official in the role of personal-capacity defendant thus fits comfortably
within the statutory term „person.‟ [Citation.]” (Hafer, supra, at p. 27.) While a plaintiff
may sue a state official in his individual capacity for acts undertaken under the guise of
official authority (ibid.), we must also consider that a plaintiff may not “circumvent
congressional intent by a mere pleading device.” (Will, supra, 491 U.S. at p. 71, fn.
omitted.)
B. Appellant has failed to show that she should be permitted to amend her
complaint to add a personal-capacity claim against Deasy
Appellant makes two arguments on appeal as to her section 1983 claim. First,
appellant acknowledges that a section 1983 claim cannot lie against the state, an arm of
the state, or a state employee in his official capacity. However, she contends that her first
amended complaint, as written, alleges a section 1983 claim against Deasy in his personal
capacity. Further, appellant argues that even if it is not clear that Deasy is being sued in
his individual capacity, she should be granted leave to amend her complaint to
specifically allege that Deasy is being sued in his individual capacity. For the reasons set
forth below, we reject appellant‟s arguments.
1. Appellant’s first amended complaint alleges an official-capacity suit
against Deasy only
In determining whether a section 1983 claim may lie against a state official, we
must analyze “the capacity in which the state officer is sued, not the capacity in which the
officer inflicts the alleged injury.” (Hafer, supra, 502 U.S. 21, 26.) In order to determine
9
the capacity in which the officer is sued, we analyze the language of the complaint.
(Baughman v. State of California (1995) 38 Cal.App.4th 182, 188.)
The operative complaint lists the defendants as “Los Angeles Unified School
District; John E. Deasy, Superintendent of the Los Angeles Unified School District; and
DOES 1 THROUGH 100, Inclusive.” Thus, the caption of the complaint gives no
indication that Deasy was being sued as an individual. Instead, it shows the opposite
intent: that Deasy was sued solely in his role as superintendent of schools.
The language of the complaint further confirms that appellant alleges an official-
capacity claim only against Deasy. In her description of the parties, appellant describes
Deasy as follows:
“Defendant John E. Deasy (hereinafter „Deasy‟) is an individual and
is the duly-appointed and acting Superintendent of LAUSD and is
responsible for overseeing all educational and administrative issues for
LAUSD and administers the overall educational activities of LAUSD‟s
schools and centers. Deasy is responsible for carrying out and enforcing
the policies of LAUSD and, on information and belief, establishes LAUSD
policy with respect to his actions and decisions. In all respects set forth
herein, Defendant Deasy acted under color of the law of the State of
California.”
While Deasy is identified as an “individual,” this brief reference in no way alters
our analysis of the complaint. As set forth in Will: “Obviously, state officials literally
are persons.” (Will, supra, 491 U.S. at p. 71.) The passing reference to Deasy as an
individual person does not change the clear intent of the complaint to target Deasy in his
official capacity. Of particular importance are appellant‟s allegations that Deasy is
responsible for carrying out and enforcing LAUSD policies. In an official-capacity
lawsuit, as opposed to an individual-capacity lawsuit, “„the entity‟s “policy or custom”
must have played a part in the violation of federal law.‟ [Citation.]” (Hafer, supra, 502
U.S. at p. 25.)
The nature of this action as an official-capacity claim against Deasy is emphasized
further in the “facts” section of the complaint, where appellant explains that Deasy
10
carried out his allegedly wrongful act within the course and scope of his employment at
LAUSD:
“Defendant Deasy made the decision to terminate Plaintiff‟s
employment and in doing so was acting within the scope and course of his
employment and duties as Superintendent of Defendant LAUSD and was
executing and acting pursuant to the policies, practices, directives and
procedures of Defendant LAUSD.”
The language of the complaint leaves no question that Deasy was sued in his
official capacity and not as an individual.
Appellant cites Romano v. Bible (9th Cir. 1999) 169 F.3d 1182, 1186 (Romano),
for the proposition that a court should “presume[] that officials necessarily are sued in
their personal capacities where those officials are named in a complaint, even if the
complaint does not explicitly mention the capacity in which they are sued. [Citations.]”
First, we note that appellant has not cited any California state law setting forth the
existence of this presumption when interpreting the sufficiency of a complaint on
demurrer in California state court. However, we need not determine whether the
presumption described under federal law should apply in this context.
The Romano court made it clear that the presumption exists where “the complaint
does not explicitly mention the capacity in which [the state officials] are sued.”
(Romano, supra, 169 F. 3d at p. 1186.) Here, as discussed in detail above, the complaint
was explicit. Deasy was sued in his capacity as “Superintendent of the Los Angeles
Unified School District” and in no other capacity. We therefore decline to apply the
presumption described in Romano.1
1 Appellant also argues that “[t]he legal theory that Deasy is sued in his
personal/individual capacity is patently stated by the First Amended Complaint,
particularly because the Third Cause of Action does not allege liability on the part of
LAUSD, but asserts that „Defendant Deasy‟ is liable for the constitutional deprivation.”
We reject this argument, which misstates the record. The third cause of action is alleged
against “Defendants.” The use of the plural in this part of the pleading suggests that
appellant was most certainly alleging liability on the part of LAUSD for this claim, since
the only two named defendants were LAUSD and Deasy.
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Based on the language and content of the complaint, we conclude that Deasy was
sued in his official capacity as an officer of the state, and not as an individual.
2. Appellant has forfeited any argument that she should be permitted
to amend her complaint to add a personal-capacity claim against Deasy
Appellant argues on appeal, as she did below, that she should be permitted to
amend her complaint to name Deasy as an individual. Appellant argues that this pleading
defect could have been cured by adding an express allegation that Deasy is being sued in
his individual/personal capacity. Appellant claims that the trial court‟s decision to deny
this request and sustain the demurrer without leave to amend was error.
We find that appellant has forfeited this argument by failing to provide a complete
record on appeal. Included in the clerk‟s transcript is a copy of the trial court‟s tentative
decision, dated September 10, 2012. In that tentative decision, the court stated:
“The court is inclined to allow Plaintiff to make an offer of proof at
the hearing, setting what facts she can allege to support her current
argument that Deasy was acting in his individual capacity. Of course,
Plaintiff may not contradict the judicial admissions in her complaint as to
the allegations in the existing complaint that he was acting within the scope
and course of his employment and pursuant to LAUSD policies.
“The court cannot see how the complaint might be amended to state
a viable claim against Deasy in light of the foregoing, but will entertain an
offer of proof at the hearing before making a decision on whether to sustain
the demurrer with or without leave to amend.”
Appellant has provided no further information regarding the court‟s suggestion she
make an offer of proof at the hearing. In particular, appellant has not included in the
record a reporter‟s transcript of the hearing. It is appellant‟s burden to show error by an
adequate record. (In re Kathy P. (1979) 25 Cal.3d 91, 102.) Without a complete record
showing whether an offer of proof was made, we are unable to assess any error, and we
may presume that any offer of proof was insufficient to show a viable claim for
individual liability against Deasy.
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3. Appellant has failed to show that her proposed amendment is more
than “a mere pleading device”
While appellant has failed to provide information regarding the trial court‟s
request that she provide an offer of proof regarding Deasy‟s alleged personal liability, she
takes the position that her current official-capacity lawsuit sufficiently alleges a section
1983 claim against Deasy in his personal capacity. Thus, appellant argues, a simple
amendment, adding Deasy in his personal capacity, is all that is needed to state a claim
against Deasy for personal liability.
Appellant has not convinced this court that she should be permitted to amend her
complaint to add Deasy as a defendant in his personal capacity. In support of her
position, appellant relies exclusively on Hafer. The Hafer court made it clear that state
officers sued in their individual capacities are not “absolutely immune from personal
liability under [section] 1983 solely by the „official‟ nature of their acts.” (Hafer, supra,
502 U.S. at p. 31.)
However, Hafer is distinguishable from the matter at hand. It was a lawsuit
brought by 18 employees who were dismissed by Barbara Hafer after she was elected to
the post of auditor general of Pennsylvania. Notably, six of the plaintiffs who brought
suit against Hafer expressly sued her in her individual capacity, and the remaining
defendants, although not as explicit, signified a similar intent. (Hafer, supra, 502 U.S. at
p. 24.) Personal liability on the part of Hafer was sufficiently pled in the allegations of
the complaint, which described actions of Hafer before she was elected to the post of
auditor general. Specifically, the plaintiffs alleged that during her campaign, Hafer
publicly promised to fire several of the plaintiffs, who supposedly secured their jobs
through payments to a former employee of the office. (Id. at p. 23.) Other plaintiffs
alleged that Hafer discharged them because of their support for her opponent during the
campaign. (Ibid.) Thus, Hafer‟s alleged personal liability extended to and included
actions and events occurring outside of her official public office. Hafer‟s alleged actions
taken pursuant to her official authority could more accurately be described as “„abuse[s]
of [her] position,‟” rather than actions undertaken in furtherance of official policy.
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Through section 1983, Congress sought to give individuals a remedy for such abuses of
official authority. (Id. at p. 27.)2
The Hafer court acknowledged that “[s]tate officers sued for damages in their
official capacity are not „persons‟ for purposes of the suit because they assume the
identity of the government that employs them. [Citation.]” (Hafer, supra, 502 U.S. at p.
27.) However, the Hafer court held that a government official in the role of a personal-
capacity defendant fits comfortably into the statutory term “person.” (Ibid.)
Significantly, when it came to a discussion of the precise difference between an official
capacity lawsuit and a personal capacity lawsuit, the Hafer court deferred to Will,
conceding that “Will itself makes clear that the distinction between official-capacity suits
and personal-capacity suits is more than „a mere pleading device.‟ [Citation.]” (Hafer,
supra, at p. 27.)3
Will involved claims by petitioner Ray Will that he was denied a promotion with
Michigan‟s Department of State Police (Department) because his brother had been a
student activist and the subject of a special file kept by respondent, the Department. Will
filed suit alleging various violations of the United States and Michigan Constitutions as
2 This distinction between abusing official authority and carrying out official policy
adequately addresses the hypothetical set forth in appellant‟s opening brief. Appellant
worries that school district officials acting within the scope of their authority could, for
example, discharge all Democrats without fear of liability because their official acts
would endow them with the immunity that has been extended to the school district. But
in discharging all Democrats, the hypothetical school official would not be carrying out
official school policies, as Deasy was alleged to have done. Instead, that official would
be abusing his or her position based on a personal agenda -- as Hafer allegedly did.
3 The Hafer court noted that the Third Circuit looked to the proceedings below to
determine whether certain respondents brought their claims for damages against Hafer in
her official capacity or her personal capacity. (Hafer, supra, 502 U.S. at p.24, fn. *.)
Noting that some courts of appeal impose a rigid requirement, requiring specific
allegations that the claim is brought against a state official in his or her individual
capacity, the Hafer court advised “„it is obviously preferable for the plaintiff to be
specific in the first instance to avoid any ambiguity.‟ [Citation.]” (Ibid.)
14
grounds for a claim under section 1983. Will named as defendants both the Department
and the Director of State Police in his official capacity. (Will, supra, 491 U.S. at p. 60.)
The Michigan Supreme Court eventually ruled that the Department, as an arm of
the state, is not a person under section 1983, and neither is a state official acting in his or
her official capacity. (Will, supra, 491 U.S. at p. 61.) The United States Supreme Court
agreed with this interpretation of section 1983. In response to the petitioner‟s argument
that state officials should be considered “persons” when acting in their official capacities,
the Supreme Court explained that “a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official‟s office.
[Citation.]” (Id. at p. 71.) In Will, as here, the suit against the Director of State Police in
his official capacity as an officer of the state was no different from a suit against the state
itself. The high court commented: “We see no reason to adopt a different rule in the
present context, particularly when such a rule would allow petitioner to circumvent
congressional intent by a mere pleading device.” (Ibid., fn. omitted.)
The Supreme Court thus made it clear that a “mere pleading device” should not be
used to “circumvent congressional intent.” (Will, supra, 491 U.S. at p. 71.) The
congressional intent to which the high court referred was the intent to exclude states, and
individuals acting on behalf of states, from liability under section 1983. (Id. at p. 64.)
Where such intent has been so clearly set forth, we decline to hold that a mere
amendment changing the capacity in which Deasy is sued is all that is needed to
circumvent the language and purpose of section 1983.
This result is also required under California state law rules governing amendments
after the sustaining of a demurrer. In order to be permitted to amend her complaint to add
Deasy as a defendant in his individual capacity, appellant was obligated to make a
showing that such an amendment was appropriate. (See Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081 [plaintiffs have “the burden of proving that an amendment
would cure the defect[s]”]; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636
[“[p]laintiff must show in what manner he can amend his complaint and how that
amendment will change the legal effect of his pleading”].) Appellant has failed to make
15
any such showing, other than suggesting that the defect can be cured by “simply adding
an express allegation that Deasy is sued in his personal/individual capacity.” This change
is not so “simple” as appellant suggests. She is, in effect, seeking to add an entirely new
defendant to her lawsuit. (See Will, supra, 491 U.S. at p. 71 [a suit against a state official
is “not a suit against the official but rather is a suit against the official‟s office”].) The
trial court did not err in requiring that appellant make a minimal factual showing that the
addition of this new defendant was appropriate.4
Because appellant has completely failed to make any factual showing supporting
her claim of personal liability on the part of Deasy, we need not determine the necessary
parameters of any such showing. We simply hold that a request to amend a complaint to
add a new defendant -- an individual, with liability separate from the state -- after a
demurrer has been sustained, requires a minimal factual showing to satisfy the court that
such an amendment is appropriate. Appellant has failed to make such a showing,
therefore we decline to reverse the trial court‟s ruling sustaining the demurrer to this
cause of action without leave to amend.5
4 The court noted in its tentative decision that it would be difficult for appellant to
make such a showing without contradicting “the judicial admissions in her complaint as
to the allegations in the existing complaint that [Deasy] was acting within the scope and
course of his employment and pursuant to LAUSD policies.” We agree that appellant
may not expressly contradict her earlier allegations in order to survive demurrer. “A
plaintiff may not avoid demurrer by pleading facts or positions in an amended complaint
that contradict the facts pleaded in the original complaint or by suppressing facts which
prove the pleaded facts false. [Citation.]” (Cantu v. Resolution Trust Corp., supra, 4
Cal.App.4th at p. 877.)
In addition, respondents point out that Deasy does not have the authority to hire or
fire substitute teachers. Pursuant to Education Code sections 44953 and 45030, those
employment decisions are made by the governing board of the school district. Thus, any
allegation that Deasy carried out the act of terminating appellant‟s employment in his
individual capacity would be subject to demurrer on the ground that Deasy had no power
to do so.
5 Because we have determined that Deasy was sued only in his official capacity, and
that appellant has failed to make a showing that she should be permitted to amend her
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III. Claim under the Constitution, section 2(a)
The trial court sustained respondents‟ demurrer to appellant‟s cause of action
under the Constitution, section 2(a) on the ground that there is no private cause of action
under that provision. The trial court cited Katzberg, and Degrassi in support of its ruling
that the freedom of speech provisions of the California Constitution do not give rise to a
private right of action.
Appellant argues that the trial court‟s broad ruling does not withstand analysis.
Specifically, appellant argues that the Degrassi court, while denying a private cause of
action for damages under the Constitution, section 2(a) under the facts before it, held that
“This does not mean that the free speech clause, in general, never will support an action
for money damages.” (Degrassi, supra, 29 Cal.4th at p. 344.) Instead, appellant argues,
each case must be separately evaluated under the factors set forth in Katzberg, supra, 29
Cal.4th at pages 324-329.
A. No private right of action exists under the Constitution, section 2(a)
pursuant to Degrassi and Katzberg
The Degrassi court undertook a two-step procedure in concluding that the
Constitution, section 2(a) did not create a private right of action for damages in that case.
First, the court analyzed whether the language or legislative history of the provision
disclosed an intent to include a damages remedy. (Degrassi, supra, 29 Cal.4th at pp.
338-342.) After undergoing this analysis, the high court concluded, “there is no
indication in the language of article I, section 2(a), nor any evidence in the history of that
provision, from which we may find, within that provision, an implied right to seek
damages for a violation of the free speech right set out therein.” (Id. at p. 342.)
However, this analysis did not end the inquiry. The high court then proceeded to
consider “„whether a constitutional tort action for damages to remedy the asserted
constitutional violation should be recognized.‟ [Citation.]” (Degrassi, supra, 29 Cal.4th
at p. 342.) Applying the factors set forth in Katzberg, the court declined to recognize
complaint to add him as an individual defendant, we need not address the question of
whether Deasy, in his individual capacity, is entitled to qualified immunity.
17
such a remedy for the asserted violation alleged in the case before it. (Degrassi, at p.
342.) The Katzberg factors are: (1) the adequacy of existing remedies; (2) the extent to
which a constitutional tort action would change established tort law; (3) the nature of the
provision and the significance of the purpose that it seeks to effectuate; and (4) whether
the creation of a damages action might produce adverse policy consequences or practical
problems of proof. (Katzberg, supra, 29 Cal.4th at pp. 324-329.)
We find that an analysis of these factors dictates against the recognition of a
constitutional tort action in this case. As to the first factor, the parties disagree regarding
whether appellant had alternative remedies available. Respondents assert that appellant
did have remedies available, both under the Workers‟ Compensation Act (Lab. Code,
§ 3600 et seq.) and pursuant to Code of Civil Procedure section 1085. Appellant asserts
that neither remedy was available to her. As to the Workers‟ Compensation Act,
appellant claims that this act compensates only for work-related injuries causing a
disability or the need for medical treatment. (Lab. Code, § 3600, subd. (a); Coca-Cola
Bottling Co. v. Superior Court (1991) 233 Cal.App.3d 1273, 1284.) Additionally,
appellant claims, writs of mandate under Code of Civil Procedure section 1085 are only
available to compel action that is required by statute.
While the first factor does not clearly dictate against recognition of a claim under
the Constitution, section 2(a), the second factor militates strongly against it. As set forth
in Degrassi, California tort law does not support recognition of a constitutional tort action
for damages under this provision. (Degrassi, supra, 29 Cal.4th at p. 343.) Thus,
recognition of a constitutional tort action would significantly change established tort law.
Further, as set forth in Motevalli v. Los Angeles Unified School Dist. (2004) 122
Cal.App.4th 97 (Motevalli), the potential adverse policy consequences of the recognition
of such a tort action is a critical consideration under the circumstances of this case. As
explained by the Motevalli court, allowing a substitute teacher a constitutional damages
action would create an inequitable situation:
“Untenured teachers have fewer rights than permanent teachers.
This difference is the product of an explicit legislative scheme. (See, e.g.,
18
[Ed. Code,] §§ 44911, 44915, 44929.21, 44932, 44948, 44953, 44954.)
Recognition of a constitutional damages action here would result in the
anomaly of [terminated] untenured teachers denied rehiring having greater
rights than tenured teachers who have been discharged. A tenured teacher
is required to exhaust his or her internal administrative remedies before
going to court [citation], which decision would then be reviewed on
administrative mandamus [citation], wherein the employer‟s liability would
be determined by a court before the employee could bring an action for
damages. [Citation.]”
(Motevalli, supra, 122 Cal.App.4th at p. 119.)
The Motevalli court further pointed out “if a probationary/provisional teacher
. . . were allowed to proceed directly to court in a damages action . . . that teacher would
be in a position superior to his or her tenured counterparts.” (Motevalli, supra, 122
Cal.App.4th at p. 119.) Thus, granting a constitutional action for damages would be “to
provide protection the Legislature chose to withhold.” (Ibid.)
We agree with the reasoning of the Motevalli court, and find it applicable in the
present matter. With this fourth Katzberg factor dictating so strongly against allowing a
private cause of action in this matter, we decline to permit such a cause of action in this
case. And while “the free speech clause reflects an important and fundamental interest,”
“when the considerations mentioned above do not militate in favor of recognizing a
constitutional tort action, the relative importance of the right, standing alone, is not a
factor of great significance. [Citation.]” (Degrassi, supra, 29 Cal.4th at p. 343.)
We agree with appellant‟s assertion that the Degrassi court limited its holding to
the specific case before it. However, Degrassi still provides controlling authority that a
private right of action was not contemplated under the Constitution, section 2(a).
Because the Katzberg factors do not unequivocally dictate in favor of allowing a private
right of action in this case, we follow the Degrassi decision in finding that no such right
should be recognized in the present action.
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B. The injunctive relief that appellant seeks is not available under the
Constitution, section 2(a)
Appellant emphasizes that her complaint not only seeks monetary relief, but
requests injunctive relief requiring LAUSD to reemploy appellant at her former position
with the same wages and benefits. Appellant argues that the Degrassi ruling was limited
to an action for damages. (Degrassi, supra, 29 Cal.4th at p. 335.) Appellant points out
that the Degrassi court explicitly acknowledged that an action for injunctive relief may
be supported by the Constitution, section 2(a). (Degrassi, at p. 338 [“„Furthermore, it
also is clear that . . . this section supports an action, brought by a private plaintiff against
a proper defendant, for declaratory relief or injunction‟”].) The Degrassi court did not
address such a claim for injunctive relief, but limited its analysis to the question of
“whether, assuming that the alleged facts demonstrate a violation of plaintiff‟s free
speech rights, plaintiff has stated an action for relief in damages.” (Ibid.) Appellant
argues that, at the very least, she is entitled to maintain her claim under the Constitution,
section 2(a) for an injunction requiring that she be rehired.
The Degrassi court did not elaborate on what sort of injunctive relief is available
under the Constitution, section 2(a). Nor has appellant provided any precedent at all
showing that such injunctive relief has ever, in fact, been granted under this provision.
Appellant asks this court to create new law by finding that the Constitution, section 2(a)
supports the imposition of an employment-related injunction.
We decline to do so. We begin by analyzing the constitutional provision at issue,
which makes no mention of employment or an individual‟s right to employment or
rehiring. The provision at issue reads:
“Every person may freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of this right. A
law may not restrain or abridge liberty of speech or press.”
(Const., § 2(a).)
Respondents did not literally curtail appellant‟s free speech or prevent her from
speaking freely. There is no suggestion that respondents told appellant what to say or
20
what not to say, or prevented her in any way from publishing her sentiments. Nor have
respondents passed a law restraining or abridging speech. It is these types of activities
which the language of the Constitution, section 2(a) targets, and thus it is these types of
activities which would likely be candidates for injunctive relief under this provision.
The allegedly wrongful activity that respondents carried out was the termination of
appellant‟s employment. The Constitution, section 2(a) cannot be read to support a cause
of action for injunctive relief where an individual is seeking to be rehired by her
employer. Without specific precedent that the Constitution, section 2(a) supports a cause
of action for such an employment-related injunction, we decline to create authority for
such an action.
IV. Tort claims for wrongful discharge and negligent infliction of emotional distress
The trial court sustained respondents‟ demurrers to appellant‟s tort causes of
action for wrongful discharge and negligent infliction of emotional distress. The trial
court cited Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899
(Miklosy), which held:
“The Government Claims Act (§ 810 et seq.) establishes the limits of
common law liability for public entities, stating: „Except as otherwise
provided by statute: ¶ (a) A public entity is not liable for an injury, whether
such injury arises out of an act or omission of the public entity or a public
employee or any other person.‟ (§ 815, subd. (a), italics added.) The
Legislative Committee Comment to section 815 states: „This section
abolishes all common law or judicially declared forms of liability for public
entities, except for such liability as may be required by the state or federal
constitution, e.g., inverse condemnation. . . .‟ [Citation.]”
The trial court went on to note that both wrongful discharge and negligent
infliction of emotional distress are common law claims. Thus, the trial court concluded,
the defendants could not be sued under these causes of action.
Appellant points to Government Code section 815.2, which she describes as a
“general authorization to assert tort claims against governmental entities.” Appellant
argues that section 815.2 sets forth a general rule that an employee of a public entity is
liable for his torts to the same extent as a private person, and the public entity is
21
vicariously liable. (Barnhart v. Cabrillo Community College (1999) 76 Cal.App.4th 818,
822.)6
Miklosy addressed this very same argument in the context of a wrongful discharge
cause of action. The Miklosy appellants argued that irrespective of whether Government
Code section 815 abolishes common law liability for public entities, the individual
employees are subject to common law liability, and under section 815.2, the University,
as their employer, bears that liability under the doctrine of respondeat superior. The
Miklosy court rejected this argument, holding:
“Plaintiffs, however, overlook the fact that a Tameny action for
wrongful discharge can only be asserted against an employer. An
individual who is not an employer cannot commit the tort of wrongful
discharge in violation of public policy; rather, he or she can only be the
agent by which an employer commits that tort. This conclusion flows
logically from our reasoning in Tameny.”
(Miklosy, supra, 44 Cal.4th at p. 900.)7
6 Barnhart involved a suit for personal injury claims arising out of a car accident.
The Barnhart court noted that Government Code section 815.2 makes the doctrine of
respondeat superior applicable to public employers. However, the court went on to
affirm the trial court‟s holding that the defendants were immune from liability under
former California Code of Regulations, title 5, section 55450. The case thus does not
support appellant‟s claim that tort liability should be imposed under the circumstances
before us.
7 The Miklosy court was referring to its previous decision in Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167, in which the high court held that, when “an
employer‟s discharge of an employee violates fundamental principles of public policy,
the discharged employee may maintain a tort action and recover damages traditionally
available in such actions.” (Id. at p. 170.) However, in Palmer v. Regents of University
of California (2003) 107 Cal.App.4th 899, 909, the Court of Appeal specified that
because the classic Tameny action is a judicially created tort, it is not properly asserted
against a public entity. (See also Miklosy, supra, 44 Cal.4th at pp. 899-900 [“we agree
with the Palmer court that [Government Code] section 815 bars Tameny actions against
public entities”], fn. omitted.)
22
The same reasoning applies here. The tort of wrongful discharge, and the related
infliction of emotional distress, may only be asserted against the employer. Under
Miklosy, the demurrers to these causes of action were properly sustained.
Appellant asserts that Miklosy is distinguishable because here, unlike in Miklosy,
the wrongful discharge was based upon a violation of appellant‟s constitutional rights.
Appellant notes that the Miklosy court pointed out that Government Code section 815
“„abolishes all common law or judicially declared forms of liability for public entities,
except for such liability as may be required by the state or federal constitution, e.g.,
inverse condemnation. . . .‟” (Miklosy, supra, 44 Cal.4th at p. 899.) In Miklosy, the
alleged wrongful termination was based on a violation of California‟s statutory
whistleblower protections, whereas here, the alleged wrongful termination is based on a
violation of appellant‟s free speech rights.
We find this distinction to be unpersuasive. Miklosy made it clear that a claim for
wrongful discharge in violation of public policy may not be brought against a public
entity. Thus, under Miklosy, liability for the tort of wrongful discharge in violation of
public policy is not “„required by the state or federal constitution.‟” (Miklosy, supra, 44
Cal.4th at p. 899, citing Legis. Com. com., 32 West‟s Ann. Gov. Code (1995) foll. [Gov.
Code,] § 815, p. 167.) We decline to come to a different conclusion here.
Finally, appellant cites one federal lower court case, Scott v. Solano County Health
& Soc. Order Servs. Dep’t (E.D.Cal. 2006) 459 F.Supp.2d 959, 968, where the court
considered a wrongful termination claim against a public entity and held that it was not
barred by Government Code section 815. Because this case pre-dates Miklosy, we do not
find it persuasive.
The alleged torts are barred under Government Code section 815 and Miklosy.
The trial court did not err in sustaining respondents‟ demurrers to these causes of action.
V. Punitive damages claims
Appellant‟s final argument involves her claim for punitive damages. Appellant
argues that because the trial court erroneously sustained the demurrers to the substantive
23
causes of action against respondents, it erroneously sustained the demurrer to her claim
for punitive damages.
As set forth above, we have determined that the trial court properly sustained the
demurrers to each of the challenged causes of action. Therefore, the demurrer to the
punitive damages claim was also properly sustained.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs of appeal.
CERTIFIED FOR PUBLICATION
___________________________, J.
CHAVEZ
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
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