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CHRISTINE DEGRASSI, Plaintiff-Appellant,
v.
CITY OF GLENDORA, a Municipal corporation; ARTHUR COOK; PAUL
BUTLER; SUE BAUER; MARSHALL MOUW; ALBERT FISHMAN; MOLLY A. MACLEOD;
GARY W. ANDREWS; CONNIE ANDREWS; BETTY ANDREWS VAN VLIET, Defendants-Appellees.
No. 98-55802
CHRISTINE DEGRASSI, Plaintiff-Appellant,
v.
CITY OF GLENDORA, a Municipal corporation; GARY W. ANDREWS;
CONNIE ANDREWS; BETTY ANDREWS VAN VLIET; RONALD A. MORALES; MOLLY
A. MACLEOD; ARTHUR COOK; PAUL BUTLER; SUE BAUER; MARSHALL MOUW;
ALBERT FISHMAN; GARY AND LOWELL ANDREWS, INC., a corporation,
dba ANDREWS, INC.; BURKE, WILLIAMS AND SORENSEN, Defendants-Appellees.
No. 98-56228
United States Court of Appeals for the Ninth Circuit
D.C. No. CV-97-07973-SVW
Appeals from the United States District Court for the Central
District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted December 7, 1999 -- Pasadena, California
Before: Melvin Brunetti and A. Wallace Tashima, Circuit Judges,
and William W Schwarzer,[FOOTNOTE *] Senior District Judge.
COUNSEL
Robert L. Kern, Pomona, California, for the plaintiff-appellant.
Richard R. Terzian, LeBoeuf, Lamb, Greene & MacRae,
Los Angeles, California, and Daniel P. Barer, Pollak, Vida &
Fisher, Los Angeles, California, for the defendants-appellees.
Filed March 20, 2000
SCHWARZER, Senior District Judge:
Christine DeGrassi was a member of the Glendora City
Council (the Council). She seeks indemnity for her attorney'
s fees from the City of Glendora (the City) under the California
Tort Claims Act. She also seeks damages from various City officials
and private parties for alleged civil rights violations under
42 U.S.C. § 1983. We must decide: 1) whether a city council
member sued for statements made in the scope of her duties as
a council member is entitled to an unconditional defense from
the City under the California Tort Claims Act; and 2) whether
the member' s free speech rights under the First Amendment are
infringed by her exclusion from council meetings called to discuss
the member' s request for a defense provided by the City.
FACTS
DeGrassi was elected to the Glendora City Council in
1994. She alleges that from the time of her election until 1997,
the defendants -- Council members, City officials, the private
law firm representing the City, and plaintiffs in an action brought
against her -- subjected her to a campaign of harassment and
intimidation because they opposed her political views. She claims
that defendants barred her from participating in Council business,
prevented her from communicating with City staff, and threatened
her both physically and with litigation should she disclose the
wrongdoing of any City employee. Much of the conduct complained
of occurred as a result of DeGrassi' s objection at a City Council
meeting in 1996 to the granting of landmark status to a building
in Glendora whose prior owner, she claimed, was a child molester.
The owners of the building, the Andrews family, filed a slander
action (the Andrews action) against her based on her comments
at the City Council meeting. DeGrassi claims this action, which
was eventually dismissed, was filed in retaliation for her political
views.
DeGrassi sought to have the City provide her a defense
against the Andrews action. On several occasions during October
1996, the City Council held closed sessions to consider DeGrassi'
s demand. DeGrassi was excluded from these meetings. She contends
this conduct was part of a continuing campaign to interfere with
her First Amendment rights and to destroy her political reputation
and career; this conduct is the subject of DeGrassi' s appeal
from the district court' s dismissal of her § 1983 claims
(No. 98-56228). The City offered to provide DeGrassi with a defense
subject to a reservation of rights and the condition that it
control the litigation and potential settlement.[FOOTNOTE 1]
DeGrassi rejected the offer and retained counsel at her own expense.
She now seeks reimbursement of her costs; this is the subject
of her appeal from the district court' s grant of summary judgment
against her on her indemnity claim (No. 98-55802).
Subject matter jurisdiction exists under 28 U.S.C. §
§ 1331 and 1367. We have appellate jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.
DISCUSSION
I. THE INDEMNITY CLAIM
DeGrassi contends that the district court erred in holding
that the City had complied with its statutory obligation to provide
a defense, ruling that there was no genuine fact issue with respect
to her claim for indemnification, and denying her an opportunity
to conduct discovery. We review the district court' s summary
judgment ruling de novo. See Balint v. Carson City, 180
F.3d 1047, 1050 (9th Cir. 1999) (en banc). We must determine,
viewing the evidence in the light most favorable to the nonmoving
party, whether there are any genuine issues of material fact
and whether the district court correctly applied the relevant
substantive law. See id. We review the district court'
s ruling not to permit additional discovery pursuant to Federal
Rule of Civil Procedure 56(f) for abuse of discretion. See
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 920 (9th
Cir. 1996).
A. The City' s Conditional Offer to Provide a Defense
DeGrassi contends that the district court erred in ruling
that the City had complied with its obligation to provide her
with a defense. She acknowledges that there is no California
authority defining the limits of the ability of the City to control
her defense but she argues that as a professional she should
be entitled to approve or reject any settlement entered on her
behalf.[FOOTNOTE 2] DeGrassi cites a footnote in Robertson
v. Chen, 52 Cal. Rptr. 2d 264 (Cal. Ct. App. 1996), stating
that "[a]n exception to the general rule affording insurers
the unconditional right to settle most third party claims without
the insured' s consent are the provisions in professional liability
policies which ' often give the insured the right to approve
or reject any settlement negotiated by the insurer.' "Id.
at 267 n.3 (citation omitted). Her reliance on this language
is misplaced. DeGrassi' s claim does not arise under the terms
of a liability policy. Rather, it is controlled by the California
Government Code, which defines the City' s indemnity obligation.
Government Code section 995, which creates the obligation
to defend a public employee, provides:
[U]pon request of an employee or former employee, a public
entity shall provide for the defense of any civil action or proceeding
brought against him, in his official or individual capacity or
both, on account of an act or omission in the scope of his employment
as an employee of the public entity.
Cal. Gov' t Code Ann. § 995 (West 1995 & Supp. 2000).
This obligation is limited by the public entity' s right to refuse
to provide a defense if it determines the employee did not act
in the scope of employment, acted with actual fraud, corruption,
or actual malice, or that defense of the action would create
a conflict of interest between the public entity and the employee.
See Cal. Gov' t Code Ann. § 995.2(a) (West 1995 &
Supp. 2000). The obligation to indemnify a public employee is
found in section 825(a), which provides:
[I]f an employee or former employee of a public entity requests
the public entity to defend him or her against any claim or action
against him or her for an injury arising out of an act or omission
occurring within the scope of his or her employment as an employee
of the public entity and such request is made in writing not
less than 10 days before the day of trial, and the employee or
former employee reasonably cooperates in good faith in the defense
of the claim or action, the public entity shall pay any judgment
based thereon or any compromise or settlement of the claim or
action to which the public entity has agreed.
Cal. Gov' t Code Ann. § 825(a) (West 1995 & Supp.
2000) (emphasis added). Under this section, given a proper request
by the employee and her good faith cooperation in the defense
of a claim based on conduct occurring within the scope of employment,
the City must indemnify the employee against any judgment or
the cost of a settlement to which it has agreed. See id.
This language leaves no room to argue that the employee must
also agree to the settlement.
These provisions were adopted as a part of the California
Tort Claims Act (Cal. Gov' t Code § § 810-996) in response
to the California Supreme Court' s decision in Muskopf v.
Corning Hosp. Dist., 359 P.2d 457 (Cal. 1961). That decision
eliminated the defense of sovereign immunity in tort actions
against the State and other public entities. See id. at
458. In response, the Legislature adopted legislation to limit
tort liability of public entities and of public employees. "[A]
principal purpose of the [California Tort Claims Act] centered
on assuring the zealous execution of official duties by public
employees." Johnson v. State, 447 P.2d 352, 359 (Cal.
1968). To that end, the Legislature provided a qualified right
to indemnity.
The Legislature did not grant public employees the
right to control a defense provided by a public entity. The statute
by its terms grants the public entity authority to select an
attorney by giving it the option to use its own attorney, hire
outside counsel, or purchase insurance requiring the insurer
to defend the employee. See Cal. Gov' t Code Ann. §
996 (West 1995). It lodges control over settlement in the public
entity by limiting the obligation to indemnify a public employee
against settlements to those "to which the public entity
has agreed." § 825(a). The statute also conditions
the employee' s rights on her "reasonabl[e] cooperat[ion]
in good faith in the defense of the claim or action." Id.
Failure to cooperate in good faith with the City' s defense of
the claim relieves the public entity of its obligation to indemnify
the employee. See Stewart v. City of Pismo Beach, 42 Cal.
Rptr. 2d 382 (Cal. Ct. App. 1995) (finding police officer, who
made statements that incriminated City to plaintiffs in underlying
tort liability action, was not entitled to defense because he
had willfully failed to cooperate in good faith with the City'
s defense). Because a public entity providing an employee' s
defense under section 825(a) assumes the liability for any resulting
settlement or judgment, these qualifications do not undermine
its strong incentive to provide an effective defense. See
Laws v. County of San Diego, 267 Cal. Rptr. 921, 926 (Cal.
Ct. App. 1990) (finding a public entity has more incentive than
an insurance company to carry out another' s defense because
its liability is theoretically limitless).
We conclude that giving a public employee a right to
control settlement of an action defended by the public entity
is supported neither by the statute' s text nor by its purpose.
B. The Reservation of Rights and Conflict of Interest
DeGrassi argues that a genuine issue of material fact
exists over whether the terms on which the City offered to defend
her created a conflict of interest between her and the City.
Her argument is that the lawyers who prepared the City' s offer
to provide her a defense were the same lawyers who would have
defended her. She sought discovery to show that other city employees
were provided a defense on different terms. Pointing to Government
Code section 996.4, she asserts that the Legislature enacted
this section to "eliminate . . . possible conflict of interest
and . . . to assure that deserving public employees will be defended
at public expense."
But section 996.4 has no application here. That section
applies when a public entity fails or refuses to provide a requested
defense. See Cal. Gov' t Code Ann. § 996.4 (West
1995 & Supp. 2000). In that situation, an employee who retains
her own attorney is entitled to recover reasonable fees, costs
and expenses necessarily incurred in the defense of the action.
See id. Here, the City offered to provide DeGrassi with
a defense on terms which, as the foregoing discussion shows,
were consistent with the provisions of the Government Code. Because
the City neither refused nor failed to provide DeGrassi with
a defense, section 996.4 does not apply.
Moreover, there is no authority entitling DeGrassi
to retain independent counsel on the strength of her unilateral
assertion of a conflict of interest involving the City. Section
995.2(a)(3) permits the public entity to refuse to provide a
defense if it determines that the defense would create a conflict
of interest between the entity and the employee. See id.
That section does not entitle the employee to independent counsel
simply because she asserts the existence of a conflict of interest.
In Laws v. County of San Diego, the Court of Appeal rejected
county employees' claims that a conflict of interest existed
between them and the county where the county' s defense offer
included a reservation of rights clause. See 267 Cal.
Rptr. at 928. The court held that the county had no duty to provide
independent counsel, and that the California Tort Claims Act
provided adequate protection of the employees' defense and indemnification
rights. See id.
C. Denial of the Rule 56(f) Request
DeGrassi challenges the district court' s denial of
her request to conduct discovery. However, her argument that
a material issue of fact existed as to whether she and the City
and its attorneys had a conflict of interest is without merit.
As discussed above, her assumption that the existence of a conflict
of interest supports her indemnity claim is fallacious; she had
no right to retain independent counsel unless the City refused
to provide her with a defense. Because DeGrassi was not entitled
to an unconditional offer of defense, the district court properly
decided the issue as a matter of law. Moreover, the City had
discretion to tailor the terms on which it provided a defense
to particular employees. See, e.g., Cal. Gov' t Code §
996 (public entity offering defense of public employee may use
its own attorney, hire outside counsel, or purchase insurance
requiring insurer to defend). Because there is no claim that
exercise of that discretion violated state or federal law, the
proposed discovery directed at whether the city offered different
indemnity terms to other employees would not affect the resolution
of the legal issue. The district court did not abuse its discretion
when it denied DeGrassi' s Rule 56(f) request.
Because the City' s offer of a defense complied with
the statute, DeGrassi' s claim for indemnity fails and summary
judgment was properly granted.
II. THE CIVIL RIGHTS CLAIMS
A. Dismissal of the First Claim: Civil Conspiracy
DeGrassi' s first civil rights claim alleges a conspiracy
to deprive her of her right to control her defense, and a breach
of the duty of good faith and fair dealing. The district court
dismissed the claim for failure to allege a civil wrong because:
(1) the City had complied with its statutory obligation to provide
a defense; and (2) no independent claim lies for breach of the
duty of good faith and fair dealing in the absence of a breach
of contract claim. DeGrassi' s opening brief does not address
that issue. In her reply, DeGrassi attempts, without supporting
authority, to analogize her relationship with the City to that
of an insurance company to its insured. Because we affirm the
district court' s conclusion that the City had complied with
its obligation to defend DeGrassi, this claim was properly dismissed.
B. Dismissal of the Second Claim: § 1983
DeGrassi' s second claim alleges, pursuant to 42 U.S.C.
§ 1983, that the defendants violated her free speech rights
under the First Amendment. "Under § 1983, any person
may bring a claim against a government official who acts under
color of state law to deprive that person of constitutional rights."
Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). The
district court dismissed this claim because the statute of limitations
barred claims for acts occurring prior to September 24, 1996,
and the claims for acts falling within the limitations period
were not supported by facts showing a deprivation of DeGrassi'
s civil rights.
We review de novo a dismissal of a complaint
for failure to state a claim. See Kruso v. International Tel.
& Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). When
reviewing dismissal of a complaint, we accept the allegations
of the complaint as true and construe them in the light most
favorable to the plaintiff. See Love v. United States,
915 F.2d 1242, 1245 (9th Cir. 1990). Dismissal of a complaint
is improper "unless ' it appears beyond doubt that the plaintiff
can prove no set of facts in support of [her] claim which would
entitle [her] to relief.' "Id. (quoting Gibson v. United
States, 781 F.2d 1334, 1337 (9th Cir. 1986)).
1. Application of the statute of limitations to the §
1983 claims.
DeGrassi contends that the district court erred when
it dismissed those of her § 1983 claims based on acts occurring
more than one year before the filing of the action on September
23, 1997, as barred by the one-year statute of limitations. We
apply California' s personal injury statute of limitations to
§ 1983 actions. See Fink v. Shedler, 192 F.3d 911,
914 (9th Cir. 1999) (holding that in California the one-year
statute applies to a § 1983 action). Federal law determines
when a civil rights cause of action accrues. See id.
DeGrassi argues that her § 1983 claims are saved
by the "continuing violation doctrine" under which
"' a systematic policy of discrimination is actionable even
if some or all of the events evidencing its inception occurred
prior to the limitations period.' "Sosa v. Hiraoka,
920 F.2d 1451, 1455 (9th Cir. 1990) (quoting Williams v. Owens-Illinois,
Inc., 665 F.2d 918, 924 (9th Cir. 1982)). She maintains that
defendants engaged in "continuous improper activities"
both before and after September 23, 1996, and that these activities
were "part of the chain of events in a continuing campaign
of intimidation and harassment."
She alleges that the City Manager, Arthur Cook, threatened
her on three occasions in 1994 concerning statements and questions
during City Council meetings, telling her to keep quiet and do
as she was told. She alleges that another Council member, Sue
Bauer, also threatened her in 1994, telling DeGrassi to vote
for her. She charges that Cook and other Council members excluded
her from participating in assessments of City commission and
board member applications in June of 1994, preventing her from
obtaining information about appointments; that they adopted a
resolution in 1994 that required all City Council members to
obtain Cook' s approval before making requests of the City Attorney
or department heads, but applied the resolution exclusively to
her; that in December 1994, they excluded her from a City Council
meeting concerning an unrelated pending lawsuit due to an alleged
conflict of interest; and that Cook denied her information about
police cadets and threatened to sue her. DeGrassi further alleges
that several actions taken by defendants two years later, immediately
before and during the Andrews action, also constitute part of
this "campaign." On August 27, 1996, the Glendora Chief
of Police, Paul Butler, allegedly refused to provide DeGrassi
with reports relating to the alleged molestations occurring in
the Andrews' building because the record was sealed. All of this
conduct antedated the filing of the complaint in this action
by more than one year.
On September 24, 1996, DeGrassi received a phone call
from a Council member informing her that other Council members,
Cook, and Butler knew the Andrews family intended to file suit
against her. In October of 1996, defendants excluded DeGrassi
from Council meetings in which the Council members allegedly
discussed her defense, and refused to disclose to her what took
place during these meetings. She claims other Council members
and personnel were permitted to attend such meetings in the past.
In December of 1997, the City' s lawyers directed Council members
not to listen to DeGrassi, and to ignore her questions during
a Council meeting. Finally, she alleges that the City' s offer
of a conditional defense was also part of the defendants' campaign
of intimidation and harassment.
Plaintiff relies principally on Sosa v. Hiraoka,
which held that a pattern of racially discriminatory acts that
denied Sosa a promotion established a continuing violation. See
920 F.2d at 1456. As the court put it: "[A]ll the acts
Sosa alleged are plausibly related as acts of discrimination
against Sosa because of his identification as a Mexican-American."
Id. Similarly, in Gutowsky v. County of Placer, 108 F.3d
256 (9th Cir. 1997), the court found a continuing violation where
a female employee alleged that her employer maintained a discriminatory
policy and practice in its hiring and promotion of women: "Gutowsky
contends that the widespread policy and practices of discrimination
of which she complains continued every day of her employment,
including days that fall within the limitation period."
Id. at 260; see also Reed v. Lockheed Aircraft Corp.,
613 F.2d 757 (9th Cir. 1980) (finding allegations included sweeping
attack on defendant' s systems of promotion, compensation, and
training that discriminated against women).
Because this is not a case involving a discriminatory
system, DeGrassi must state facts "sufficient . . . [to]
support[ ] a determination that the ' alleged discriminatory
acts are related closely enough to constitute a continuing violation,'
"and that one or more of the acts falls within the limitation
period. See Green v. Los Angeles County Superintendent of
Schs., 883 F.2d 1472, 1480 (9th Cir. 1989) (citation omitted).
DeGrassi' s allegations do not meet this test. What she claims
is that defendants engaged in a "campaign of harassment
and intimidation" but her allegation that there is a continuing
wrong is conclusory. DeGrassi' s allegations may show a long-standing
state of animosity and hostility, marked by incidents of personal
conflict between her and other City officials, but they do not
establish a series of related wrongful acts. Accordingly, the
one-year statute bars her claims for conduct prior to September
23, 1996.
2. The claim for exclusion from the October 1996 Council meetings.
DeGrassi asserts that her exclusion from Council meetings
in October 1996 violated her free speech rights under the First
Amendment. According to DeGrassi, these were "closed meetings"
in which the claims and defenses in the Andrews action were discussed.
She claims she was excluded on advice of the City' s counsel.
In Madison Sch. Dist. v. Wisconsin Employment Relations
Comm' n, 429 U.S. 167 (1976), the Court stated: "Plainly,
public bodies may confine their meetings to specified subject
matter and may hold nonpublic sessions to transact business."
Id. at 175 n.8. In Perry Educ. Ass' n v. Perry Local Educators'
Ass' n, 460 U.S. 37 (1983), the Court observed that "the
State may reserve [a nonpublic] forum for its intended purposes,
communicative or otherwise, as long as the regulation on speech
is reasonable and not an effort to suppress expression merely
because public officials oppose the speakers' s view." Id.
at 46. In Kindt v. Santa Monica Rent Control Bd., 67 F.3d
266 (9th Cir. 1995), we applied the forum analysis to city council
and board meetings. We said that "[c]itizens are not entitled
to exercise their First Amendment rights whenever and wherever
they wish," id. at 269, and concluded that such meetings
"fit more neatly into the nonpublic forum niche," id.
at 270. We acknowledged, however, that "limitations on speech
at those meetings must be reasonable and viewpoint neutral, but
that is all they need to be." Id. at 271.
DeGrassi was excluded from the October meetings because
of her status as a party, not because of her viewpoint. See
Perry, 460 U.S. at 49 (denial of access to nonpublic forum
based on status is not viewpoint discrimination). Because of
the potential conflict between DeGrassi' s role as a Council
member and her personal interest, it was reasonable for the Council
to exclude her from its discussions concerning her request for
a defense. See Pickering v. Board of Educ., 391 U.S. 563,
570 (1968) (finding a sufficiently great interest in confidentiality
may override a public employee' s First Amendment rights). Moreover,
her exclusion caused only a minor intrusion on her right to speak;
she was not precluded from speaking out in public or directly
with other Council members. See Pell v. Procunier, 417
U.S. 817, 824 (1974) (alternative means of communication are
a relevant factor in First Amendment analysis). Because exclusion
of DeGrassi was both viewpoint neutral and reasonable, defendants
did not violate her First Amendment rights as a private citizen.
DeGrassi also asserts that as a member of the Council
she has First Amendment rights independent of those of a citizen.
Restrictions on a council member' s ability to attend council
meetings and address matters of public concern may infringe the
member' s First Amendment rights. See Bond v. Floyd, 385
U.S. 116, 137 (1966) (Georgia legislature' s disqualification
of elected representative on account of statements about the
Vietnam war violated representative' s right of free expression
under First Amendment). As the Court stated in Bond, "[t]he
manifest function of the First Amendment in a representative
government requires that legislators be given the widest latitude
to express their views on issues of policy." Id.
at 135-36. But "[t]he central commitment of the First Amendment
. . . is that ' debate on public issues should be uninhibited,
robust and wide-open' . . . . [S]tatements criticizing public
policy and the implementation of it must be . . . protected."
Id. at 136 (emphasis added) (quoting New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964)). With respect to public
employees generally, while their "speech on matters of public
concern merits the highest degree of First Amendment protection
. . . if the communication is essentially self-interested, with
no public import, then it is not of public concern." Roe
v. City and County of San Francisco, 109 F.3d 578, 584-85
(9th Cir. 1997). As the Supreme Court stated in Connick v.
Meyers, 461 U.S. 138 (1983):
When employee expression cannot be fairly considered as relating
to any matter of political, social, or other concern to the community,
government officials should enjoy wide latitude in managing their
offices, without intrusive oversight by the judiciary in the
name of the First Amendment.
id. at 146; see also McKinley v. City of Eloy, 705
F.2d 1110, 1114 (9th Cir. 1983) ("Speech by public employees
may be characterized as not of ' public concern' when it is clear
that such speech deals with individual personnel disputes and
grievances and that the information would be of no relevance
to the public' s evaluation of the performance of governmental
agencies." ).
While the free speech rights of elected officials may
well be entitled to broader protection than those of public employees
generally, the underlying rationale remains the same. Legislators
are given "the widest latitude to express their views on
issues of policy." Bond, 385 U.S. at 136. DeGrassi'
s allegations do not relate to issues of policy or to any matter
of political, social or other concern to the community. They
concern her grievance with the Council over the terms on which
the City would provide her a defense in the Andrews action. Because
her exclusion from the closed meetings did not interfere with
DeGrassi' s ability to speak out in public or to represent her
constituents, it did not offend the First Amendment.
3. Filing of the Andrews action.
DeGrassi claims that the Andrewses and Council members
conspired to file the slander action in retaliation for her opposition
to the designation of the Andrewses' building as an historic
landmark. Under § 1983, a claim may lie against a private
party who "is a willful participant in joint action with
the State or its agents. Private persons, jointly engaged with
state officials in the challenged action, are acting ' under
color' of law for purposes of § 1983 actions." Dennis
v. Sparks, 449 U.S. 24, 27-28 (1980). However, a bare allegation
of such joint action will not overcome a motion to dismiss; the
plaintiff must allege "facts tending to show that [the Andrewses]
acted ' under color of state law or authority.' "Sykes
v. State of Cal. (Dep' t of Motor Vehicles), 497 F.2d 197,
202 (9th Cir. 1974).
Here, DeGrassi alleges that Cook had threatened to
file lawsuits against her on other, unrelated occasions. She
also claims that the City defendants knew of the lawsuit before
she did. She concludes that Cook' s threats "became a reality"
upon the filing of the Andrews action. These conclusory allegations
do not set forth facts supporting a claim that the Andrewses
acted under color of law. And because she alleges no facts indicating
that the City defendants had any involvement in the Andrewses'
decision to file that action, her allegations do not support
a claim that the filing of the action is attributable to the
City defendants. See Blum v. Yaretsky, 457 U.S. 991, 1004
(1982) ("[A] State normally can be held responsible for
a private decision only when it has exercised coercive power
or has provided such significant encouragement, either overt
or covert, that the choice must in law be deemed to be that of
the State." ).
4. Claim against Burke, Williams & Sorenson, law firm
for the City.
The principal claim against the firm seems to be that
during a December 1997 Council meeting, it instructed the Council
to ignore DeGrassi' s questions. DeGrassi' s argument that this
was a First Amendment violation is frivolous, since the First
Amendment does not guarantee that citizens' speech will be heard.
See Smith v. Arkansas State Highway Employees, Local 1315,
441 U.S. 463, 464-65 (1979); Pell v. Procunier, 417 U.S.
817, 821-22 (1974).
C. Dismissal of Third Claim: Conspiracy to Violate DeGrassi'
s Civil Rights
DeGrassi also alleges a third claim for conspiracy to
deprive her of her civil rights, based on the same facts as the
second claim. Because we conclude that defendants' actions did
not violate DeGrassi' s civil rights, the district court properly
dismissed her claim for conspiracy to violate her civil rights.
CONCLUSION
Because under the California Tort Claims Act DeGrassi
had no right to an unconditional defense of the Andrews litigation,
the City offered DeGrassi everything to which she was entitled,
and summary judgment was properly granted on the indemnity claim.
As for the § 1983 claims, the statute of limitations barred
those claims to the extent they involved acts occurring prior
to September 23, 1996. Because the remaining allegations of First
Amendment violations establish beyond doubt that DeGrassi could
prove no facts entitling her to relief under § 1983, those
claims were properly dismissed.
AFFIRMED.
::::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::
FN*.The Honorable William W Schwarzer, Senior United
States District Judge for the Northern District of California,
sitting by designation.
FN1. The City offered to provide a defense and to indemnify
DeGrassi subject to reserving the right to require her to pay
any judgment if it was determined that her actions were not within
the scope of her official duties or that they were the result
of fraud, corruption or malice. In addition, the offer required
DeGrassi to agree to cooperate in the defense, to permit the
City to select the attorney, and to grant the City complete control
over whether and on what terms to settle.
FN2. Neither party has requested that we certify this
issue, not heretofore addressed by the California courts, to
the California Supreme Court and we see no need to do so, inasmuch
as we do not regard it as a close one. Cf. Alaska Airlines,
Inc. v. United Airlines, Inc., 902 F.2d 1400, 1402 n.1 (9th
Cir. 1990).
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