County files demurrer in Stone case
April 9, 2013 — Kathleen Williams, the Sacramento-based attorney representing Lassen County in the case of Tom Stone, the former county administrative officer who alleges the county wrongly terminated him in 2011, filed a notice of demurrer to plaintiff’s complaint and a lengthy memorandum of points and authorities in support in Lassen County Superior Court on March 18.
Should Stone prevail in the lawsuit, he asks the court to award him at least $1 million in damages and costs.
A hearing on the demurrer has been scheduled for 8:30 a.m. Thursday, April 18. A demurrer — a legal term which means, “to object” — is a pleading frequently filed early in a court action to challenge the legal sufficiency of a claim or action.
“It is well established that a complaint must allege facts sufficient to establish every element of each cause of action,” Williams wrote. “A pleading that fails to state facts sufficient to constitute a cause of action is subject to a general demurrer. If the complaint fails to plead any essential element of a particular course of action, the court should sustain a demurrer. Facts material to the existence of statutory liability must be pleaded with particularity.”
In her court documents, Williams attacks all six of the causes for action contained in Stone’s wrongful termination lawsuit and asks the court to sustain her demurrer without leave to amend and that Stone pay the costs of bringing the demurrer and other such relief as the court may deem just and appropriate.
“Most of the causes of action in plaintiff’s (Stone) complaint fail because there is no statutory basis for the claims or the complaint is devoid of the specific facts necessary to state these causes of action,” Williams wrote. “Further, defendants (Lassen County and members of the board of supervisors), as a public entity and public employees, are entitled to immunity for their actions in voting to terminate plaintiff.”
According to the court file, Stone’s first cause of action alleges the motivating factor is his termination as county administrative officer was his protest of violations for federal and state law regarding the use of funds belonging to the county or from the federal government for specific purposes.
“The complaint fails to identify the alleged violations of state and federal law,” Williams wrote, and, “it fails to state any claim upon which relief can be granted.”
Stone also claims he is a “whistleblower,” who reported wrongdoing regarding the way funds were used in the county’s redevelopment efforts in Herlong. He claims he should be protected under the California Whistleblower Protection Act, but Williams disagrees.
“The California Whistleblower act applies to employees of the state of California, not all public employees,” Williams wrote. “Because plaintiff was a county employee and not a state employee, the California Whistleblower Protection Act is inapplicable to his claims.”
Williams concedes the California Labor Code provides protection for whistleblowers who are not state employees if they provide information regarding a violation of state or federal rule, regulation or statute.
But Williams writes Stone’s claims “are deficient because none of the factual allegations in the complaint identifies any such violation.” She wrote Stone made “only a vague assertion of a ‘violation of law.’ This is insufficient.”
In his second course of action, Stone alleges the county fraudulently induced him to come to work here under false pretences. Williams argues Stone’s pleading is “uncertain and fails to state any claim upon which relief can be granted,” and the county and the supervisors are “immune from liability due to (the) lack of (a) statutory basis for this course of action.”
Williams notes this exemption in California Government Code Section 815 (a): “Except as provided by statute: a public entity is not liable for an injury, where such injury arises out of an act or omission of the public entity or a public employee or any other person.”
In his third course of action, Stone alleges his First Amendment rights were violated when District 2 Supervisor Jim Chapman told him it was not appropriate for his wife to attend Tea Party conventions and meetings while he was county administrative officer. When Stone refused to curtail his wife’s activities, the board of supervisors allegedly retaliated, threatened and intimidated Stone and said he “would not retain his position for so long as his wife was politically active with the Tea Party.”
Williams argues Stone’s claim is “for his wife’s activities, not his own. There are no allegations that plaintiff’s own political activities or associations were addressed … Plaintiff does not identify when the ‘reprimand’ took place and does not identify his wife’s activities as the reason for his termination. Indeed, there are no allegations that plaintiff suffered any adverse action for his wife’s political activities.”
In his fourth course of action, Stone alleges his First Amendment right to freedom of religion was violated because of his religious preference.
“Similar to his ‘freedom of association claims,’” Williams wrote, “plaintiff does not assert that he was terminated because he was a Mormon, but he instead vaguely claims that he was ‘retaliated against because of his religious preference by being reprimanded by supervisor
Chapman for his religion, Mormonism.’ Plaintiff makes conclusory allegations regarding unspecified ‘implications’ … There are simply no allegations that plaintiff was subject to any action based on his Mormonism. Plaintiff has not alleged facts suggesting any type of infringement upon his First
Amendment freedom of religion rights.”
In his fifth course of action, Stone alleges the board of supervisors slandered him by reporting to the newspaper he was caught with his “hand in the cookie jar” even though the supervisors knew their statements were incorrect.
Williams argues, “Under California law when a plaintiff seeks damages for another’s words, such as in a defamation claim, those words ‘must be specifically identified if not pleaded verbatim in the complaint’ … Nothing in the complaint indicates which defendant(s) made what statements, when the statements were made or what exactly was said. Without detailed allegations, defendants have no way of defending against this claim.”
Williams also argues the one-year statute of limitations on slander claims may have already expired.
In his sixth course of action, Stone alleges he had a property interest in his continued employment with the county and his due process rights were violated when the county evaluated his performance in closed session while he was on vacation.
Williams argues Stone has no such right.
“Where employees serve at the will of the appointing authority, however, there is no reasonable expectation of continued employment and thus no property right,” Williams wrote, citing a decision in a 1986 court case. “Plaintiff was an at-will employee, and he had no protected interest in continued employment; therefore, his due process and equal protection claims fail.”
According to Lassen County Code, the county administrative officer can be removed by the vote of three members of the board of supervisors. Because the three named members of the board of supervisors exercised their “legislative discretion” in deciding to terminate Stone, they enjoy “absolute immunity” for their actions.
Williams also argues Stone failed to comply with the Government Claims Act because he did not provide the necessary information regarding the complaint he filed against the county.
“Because plaintiff has failed to properly plead and demonstrate compliance with the Government Claims Act, his state claims are barred,” Williams wrote.
Grizzlies look back on football season
Cole McCown, back left, Sam Joseph, Franky Shepherd, Quinn Thompson, Case Bennett, Jace Woginrich, front left, Tyler Clark, Colton Faure, Jake Thomas and Kyle Barnetche were all presented with awards during the Lassen High School varsity football awards ceremony Wednesday, Dec. 4. Photo by Maddie...Read More...
Lassen High wrestling hosts Purple and Gold Scrimmage
The Lassen High School wrestling team held its annual Purple and Gold Scrimmage on Wednesday, Dec. 4 in the Lassen High gym. The wrestling team broke up into two teams, purple and gold, and faced off in a night of wrestling that gave fans a taste of what they can expect in the coming season. Lassen...Read More...
Cougars face tough teams to prepare for a victorious season
TJ McCauley attempts to keep the ball away from a Fresno City College player during the championship basketball game of the El Camino Tournament on Sunday, Nov. 24. The Lassen Community College Cougars have been competing in pre-season tournaments and have earned several wins. Photo by Scott Nordstrom Dec....Read More...