LMUD wins and loses as it seeks to dismiss Trevino lawsuit
The judge also granted an LMUD motion to strike one paragraph from the first amended complaint and denied a motion to strike Trevino’s claims for attorney’s fees with leave to amend.
Thomas Beko, Trevino’s attorney, said the judge’s ruling left his client’s lawsuit intact and mostly supported his client’s case.
Jaimee Jones, LMUD’s general counsel was out of town until after deadline and unavailable to comment for this story.
Ray Luhring, LMUD’s interim general manager declined to comment on the court action.
But Beko said, “Our feeling is that these motions, filed by a Sacramento law firm, are frivolous. They’re likely to continue to file these sorts of things, but we don’t care because we think we’ll eventually be awarded attorney’s fees for defending them. If they want to do it, they should knock themselves out. We’ve got damages. We’re moving forward. It’s all good.”
According to Karlton’s ruling, “Defendants LMUD, Cady and Luhring have moved to dismiss several of the plaintiffs’ claims and have moved to strike the request for punitive damages and attorney’s fees. For the reasons provided herein, the court grants each motion in part and denies each in part.”
Karlton said his ruling was based upon the plaintiff’s filing.
“On a motion to dismiss, the allegations of the complaint must be accepted as true,” Karlton wrote. “The court may not dismiss the complaint if there is a reasonably founded hope that the plaintiff may show a set of facts consistent with the allegations.”
He agreed Trevino’s rights had been “violated by the wrongful conduct of the defendants in terminating his employment” and that Cady and Luhring had “complete discretion” to act on LMUD’s behalf and therefore were the publicly owned utility district’s policymakers.
“Generally speaking,” Karlton ruled, “the plaintiff has properly asserted this claim … ” that defendants acted “under the color of law and that their actions deprived the plaintiff of a federally protected right … ”
Karlton ruled while the defendants sought to have this claim dismissed because it was not yet ripe, the plaintiff has not exhausted his state remedies and LMUD cannot be liable under federal law, “the court is unpersuaded by the defendants’ contentions.”
The judge acknowledged Trevino may not have exhausted his appeal rights, but that was due to the defendants’ actions.
“The plaintiff has pled that he attempted to fully exhaust these remedies, but the defendants failed to timely hold the hearing that the plaintiff sought,” Karlton wrote.
In addition, LMUD is liable for damages because its “policy, practice or custom of deliberate indifference to employee rights caused his deprivation of his procedural due-process rights,” Karlton ruled.
Although the plaintiff alleged the “defendants engaged in a conspiracy to deprive him of his due process rights,” he excepts LMUD from this allegation. With leave to amend, the judge granted LMUD’s request to be removed from this cause of action.
Karlton also ruled Trevino did not need to seek a writ of mandate to secure his job appeal rights.
“If the organization fails to apply its appellate machinery after it is properly invoked and in effect prevents an appeal from being taken, the aggrieved party … need not pursue such an appeal further,” Karlton wrote.
Karlton agreed with the plaintiffs that Trevino’s employment was not covered by an employment contract and released the publicly owned utility district from that cause of action.
“Additionally, if his contention is that LMUD did not follow its policies in terminating him,” Karlton wrote, “it appears that that allegation is encompassed in his first and second causes of action.”
Karlton also denied the defendants’ motion to bar Trevino’s claim for the infliction of emotional distress because the California Tort Claims Act bars such a claim.
Karlton ruled such a claim is appropriate “so long as the plaintiff alleges that the official’s conduct was intentional so long as the state agency and the official are named as co-defendants.”
The plaintiff’s claim LMUD interfered with his employment contract failed, Karlton wrote, because his employment was not governed by a contract.
The judge struck the plaintiff’s request from exemplary damages for the intentional infliction of emotional distress because the law does not allow such a claim.
But Karlton did not strike the plaintiff’s claim for attorney’s fees because they are not “redundant, immaterial, impertinent or scandalous” and are not barred as a matter of law.
Who is judge Karlton?
Readers may remember judge Karlton for his controversial 2005 ruling in which he declared reciting the Pledge of Allegiance in public schools was unconstitutional because the pledge’s reference to “under God” violated school children’s right to be “free from a coercive requirement to affirm God.”
His ruling was later overturned.
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