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8 United States District Court 9 Central District of California

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11 FRANCES MARQUEZ, Case № 8:24-cv-01835-ODW (JDEx)

12 Plaintiff,

ORDER GRANTING MOTION TO

13 v.

DISMISS [13]

14 CITY OF CYPRESS et al.,

15 Defendants. 16 17 I. INTRODUCTION 18 Plaintiff Frances Marquez (“Marquez” or “Dr. Marquez”) brings this action 19 against Defendants City of Cypress (“City”), City Mayor Scott Minikus, City 20 Councilmembers Bonnie Peat and Anne Mallari, and City Manager Peter Grant 21 (collectively, “Defendants”) for illegally retaliating against Marquez for exercising her 22 First Amendment rights. (Compl., ECF No. 1.) Defendants move to dismiss the 23 Complaint. (Mot. Dismiss (“Mot.” or “Motion”), ECF No. 13.) The Court finds that 24 Marquez fails to plead speech protected by the First Amendment and GRANTS 25 Defendants’ Motion.1 26 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 All factual references derive from Marquez’s Complaint, attached exhibits, and 3 documents referenced and relied upon therein. Well-pleaded factual allegations are 4 accepted as true for purposes of this Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 5 (2009); United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). 6 A. Factual Background 7 On November 3, 2020, Marquez was elected to a seat on the Cypress City 8 Council. (Compl. ¶ 28.) 9 In July 2022, two Cypress citizens and the Southwest Voter Registration 10 Education Project (“SVREP”) filed a lawsuit in Orange County Superior Court against 11 the City, Southwest Voter Registration Education Project v. City of Cypress, Case 12 No. 30-2022-01270865-CU-CR-CJC (filed July 20, 2022) (the “SVREP Lawsuit”). 13 (Id. ¶¶ 29–30.) Prior to the SVREP Lawsuit, “the City’s electoral system impaired the 14 ability of minority voters to elect candidates of their choice and impaired their ability 15 to influence the outcome of an election.” (Id. ¶ 29.) The SVREP Lawsuit plaintiffs 16 claimed that the City violated the California Voting Rights Act (“CVRA”); they 17 “sought to force the City to convert to a by-district election system.”2 (Id. ¶ 30.) 18 Marquez was the only member of the City Council who “supported district- 19 based elections, believing among other things that litigating the case would not be 20 cost-effective and [that by-district elections would] improve representation on the City 21 Council.”3 (Id. ¶ 31.) Marquez’s support for by-district elections and her opposition 22 23 24

25 2 In the Complaint, Marquez uses the terms “by-district elections” and “district-based elections” interchangeably to refer to the same type of election reform. (See Compl. ¶¶ 30–31.) 26 3 The Complaint states that Marquez was the only member who supported by-district elections when she was first elected to the Council, but it is unclear from the briefing if the composition of the City 27 Council later changed to include more by-district election supporters. (See Compl. ¶ 31.) For the 28 purposes of this action, it is relevant that Marquez was at one point the only member of the City Council who supported by-district elections and the aims of the SVREP Lawsuit. (See id. ¶¶ 56–57.) 1 to litigating the SVREP Lawsuit led Minikus, Peat, Mallari, and Grant to engage in “a 2 campaign of harassment and retaliation” against her.4 (Id. ¶¶ 30–33.) 3 For instance, on or about January 26, 2022, Grant, the City Manager, issued an 4 “admonition” to Marquez that directed her to conduct business “exclusively and 5 directly through the City Manager.” (Id. ¶ 60.) This admonition “improperly 6 burden[ed] [Marquez’s] speech” and interfered with her ability to do her job as a City 7 Councilmember. (Id. ¶ 61.) Additionally, Grant subjected Marquez to “unreasonable 8 and retaliatory demands” by “reprimand[ing] [Marquez] for asking basic questions 9 necessary for her to do her job as an elected official.” (Id. ¶ 62.) 10 On or about June 27, 2022, the City passed Resolution Number 6899 11 (“Resolution 6899”), which censured Marquez for “repeatedly interfer[ing] with the 12 City Manager’s selection of a department director” by “insisting [o]n being included 13 in the selection process” from November 2020 through the first quarter of 2021. (Id. 14 ¶¶ 34–36.) Resolution 6899 also stated that Marquez had “directly engaged with a 15 consultant regarding California Voting Rights Act/Election System community forum 16 presentation.” (Id. ¶ 40.) Marquez alleges that Resolution 6899 is evidence of 17 Defendants’ retaliation against her for “exercising her right to speak regarding 18 important political issues . . . including district-based elections.” (Id. ¶¶ 40–41.) 19 On August 22, 2022, at a public meeting of the City Council, Councilmember 20 Jon Peat5 gave a presentation titled “Threats and Challenges to our City.” (Id. ¶ 43.) 21 The presentation criticized Marquez for attempting to “bring change” to the City of 22 Cypress. (Id. ¶ 44.) Councilmembers discussed Mr. Peat’s presentation for over 23 48 minutes, “using the City Council meeting as a forum to make bizarre and 24 unwarranted personal attacks against Dr. Marquez.” (Id. ¶ 43.) 25 4 Some of the instances of retaliation listed in the Complaint occurred before July 2022. (See 26 Compl. ¶¶ 34, 60.) The Court infers from the briefing that Marquez may have publicly supported by-district elections prior to the initiation of the SVREP Lawsuit. However, it is unclear from the 27 Complaint when Marquez first expressed her support for by-district elections. 28 5 Notably, Jon Peat is no longer on the City Council and is not a defendant in this action. However, Mr. Peat’s wife, City Councilwoman Bonnie Peat, is listed as a defendant. 1 Additionally, on September 16, 2022, the City Council passed Resolution 2 Number 6905 (“Resolution 6905”), which Marquez describes as “a naked attack on 3 [her] free speech rights.” (Id. ¶ 46.) The City Council issued Resolution 6905 in 4 response to Marquez’s conduct on September 7, 2022 and September 8, 2022, during 5 which Marquez and two other candidates for local public office spoke to students at 6 Cypress High School about civic engagement. (Id. ¶¶ 47–48.) Resolution 6905 7 describes Marquez’s presentation at the high school as “start[ing] out about politics 8 and running for office, but quickly chang[ing] to how nobody gets along, how 9 everybody is out to get her, how the City is being sued due to redistricting, and how 10 the City Council is going against what the residents want.” (Id. ¶ 49.) 11 Resolution 6905 imposed the following disciplinary measures on Marquez for her 12 presentation at Cypress High School: 13  The City Council formally censured Dr. Marquez.  The City Council directed Dr. Marquez “to issue a formal, written 14 apology to Anaheim Union High School District and Cypress High 15 School . . . .” 16  The City Council revoked Dr. Marquez’s appointment to the Orange County Council of Governments General Assembly (Alternate), the 17 Southern California Association of Governments General Assembly 18 (Alternate), and the City of Cypress Veteran Recognition Ad Hoc Subcommittee. 19  The City Council imposed a $100 fine on Dr. Marquez. 20  The City Council suspended Dr. Marquez’s “City Council salary and 21 stipend for 90 days effective October 1, 2022.” 22 (Id. ¶ 50.) 23 Lastly, the City retaliated against Marquez by refusing to appropriately 24 indemnify her during the SVREP Lawsuit litigation. (Id. ¶¶ 52–59.) At some point 25 during the ongoing SVREP Lawsuit, the City’s attorneys met with Marquez to prepare 26 Marquez for her upcoming deposition with respect to that action. (Id. ¶¶ 53–54.) 27 Over the course of that meeting, it “became clear that there was a conflict of interest 28 which prevented the City’s attorneys from representing Dr. Marquez.” (Id. ¶ 54.) The 1 “conflict of interest” was that Marquez agreed with the SVREP Lawsuit plaintiffs that 2 the City violated the CVRA and should switch to a by-district system. (Id. ¶¶ 56–58.) 3 Marquez’s belief thus placed her at odds with the City and the majority of its 4 Councilmembers. (Id. ¶ 57.) Based on her understanding that she could not be 5 adequately represented by the City’s lawyers, (id. ¶ 55 (citing California State Bar 6 Rule of Professional Conduct 1.7)), Marquez retained alternate counsel, (id. ¶ 58). 7 The City refused to reimburse Marquez for the $3,834 she incurred in legal fees in 8 connection with the SVREP Lawsuit. (Id. ¶ 59.) 9 B. Procedural History 10 Based on the above facts, Marquez initiates this legal action against Defendants 11 and seeks lost wages and benefits, damages, injunctive and declaratory relief, and 12 attorneys’ fees. (Id., Prayer.) Marquez asserts four causes of action: (1) violation of 13 her First Amendment rights pursuant to 42 U.S.C. § 1983, against all Defendants; 14 (2) breach of contract for failure to pay wages and benefits under common law, 15 against the City; (3) violation of the Cypress City Charter pursuant to California Code 16 of Civil Procedure section 1060 and 28 U.S.C. § 2201, against the City; and (4) writ 17 of mandate pursuant to California Code of Civil Procedure section 1085 and 18 28 U.S.C. § 1651, against the City and Grant. (Id. ¶¶ 63–86.) 19 Defendants move to dismiss all causes of action under Federal Rule of Civil 20 Procedure (“Rule”) 12(b)(6) for failure to state a claim, or, alternatively, to strike 21 various portions of the Complaint under Rule 12(f). (Mot.) The Motion is fully 22 briefed. (Opp’n, ECF No. 17; Reply, ECF No. 18.) As the Court dismisses 23 Marquez’s claims based on Rule 12(b)(6), it declines to reach Defendants’ motion in 24 the alternative to strike under Rule 12(f). 25 III. LEGAL STANDARD 26 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 27 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 28 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 1 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 2 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 3 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 4 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 5 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual 6 matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 7 556 U.S. at 678 (internal quotation marks omitted). 8 The determination of whether a complaint satisfies the plausibility standard is a 9 “context-specific task that requires the reviewing court to draw on its judicial 10 experience and common sense.” Id. at 679. A court is generally limited to the 11 pleadings and must construe all “factual allegations set forth in the complaint . . . as 12 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 13 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 14 conclusory allegations or unreasonable inferences, nor will a court supply essential 15 elements of a claim that are absent from the complaint. Sprewell v. Golden State 16 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Boquist v. Courtney, 32 F.4th 764, 774 17 (9th Cir. 2022). 18 Where a district court grants a motion to dismiss, it should generally provide 19 leave to amend unless it is clear the complaint could not be saved by any amendment. 20 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 21 1025, 1031 (9th Cir. 2008). 22 IV. DISCUSSION 23 Marquez argues that Defendants violated her First Amendment rights by 24 retaliating against her for protected speech in several instances. First, Grant targeted 25 her in a formal admonition and generally hindered her ability to perform her duties as 26 an elected official. (Compl. ¶¶ 60–62.) Second, the City censured her through 27 Resolution 6899 and Resolution 6905. (Id. ¶¶ 34–41, 46–51.). Third, the City 28 Councilmembers used a City Council public meeting to give and discuss a 1 presentation regarding how Marquez posed a “threat” or “challenge” to the City. (Id. 2 ¶¶ 42–44.) Fourth, the City refused to appropriately indemnify her and/or pay the 3 legal fees she incurred during the SVREP Lawsuit. (Id. ¶¶ 52–59.) 4 The First Amendment states that “Congress shall make no law . . . abridging the 5 freedom of speech.” U.S. Const. amend. I. “[T]he First Amendment prohibits 6 government officials from subjecting individuals to ‘retaliatory actions’ after the fact 7 for having engaged in protected speech.” Houston Cmty. Coll. Sys. v. Wilson, 8 595 U.S. 468, 474 (2022) (citation omitted). When an elected official brings an action 9 for First Amendment retaliation, she bears the burden of proving that “(1) [s]he 10 engaged in constitutionally protected activity; (2) as a result, [s]he was subjected to 11 adverse action by the defendant . . . ; and (3) there was a substantial causal 12 relationship between the constitutionally protected activity and the adverse action.” 13 Boquist, 32 F.4th at 775. If the plaintiff official makes a prima facie showing, “the 14 burden shifts to the defendant official to demonstrate that even without the impetus to 15 retaliate he would have taken the action complained of.” Id. at 778. 16 The Court begins (and ends) its analysis by addressing the first prong of this 17 test: Did Marquez engage in constitutionally protected speech? In the context of an 18 elected official, speech can be protected when the official expresses their views and 19 opinions. Id. at 775. However, not all expressive speech is protected. Where an 20 elected official uses her “official powers” that implicate “governmental mechanics,” 21 the official “has no right to use [those powers] for expressive purposes.” See Nev. 22 Comm’n on Ethics v. Carrigan, 564 U.S. 117, 131 (2011). “Even if legislative voting 23 were expressive, and ‘even if the actor would like it to convey his deeply held personal 24 belief’ that fact ‘does not transform action into First Amendment speech.’” Linthicum 25 v. Wagner, 94 F.4th 887, 892 (9th Cir. 2024) (quoting Carrigan, 564 U.S. at 127). 26 Marquez argues that the retaliation against her stems from her support for 27 district-based elections. (See Compl. ¶¶ 31, 41, 51.) But the Complaint provides 28 minimal information about the speech that led to the alleged retaliation against her. 1 The Court first addresses Marquez’s formal admonition from the City Manager. 2 (See id. ¶¶ 60–62.) This admonition, which was issued in January 2022, significantly 3 pre-dated the SVREP litigation. Marquez fails to adequately plead how this 4 admonition connects to her support for by-district elections, if it connects at all. The 5 Complaint indicates that the admonition may have stemmed from Marquez “asking 6 basic questions necessary to do her job” rather than a statement Marquez made 7 relating to by-district elections or another topic that would raise freedom of speech 8 concerns. (See id. ¶ 62.) Even if the admonition was a response to Marquez’s 9 protected speech, a mere admonition, without more, is unlikely to meet the bar for a 10 “sufficiently material” adverse action to sustain a First Amendment retaliation claim. 11 See Boquist, 32 F.4th at 784 (noting that legislatures “have historically exercised the 12 power to . . . discipline” their members); Wilson, 595 U.S. at 477. The Court therefore 13 focuses its analysis on the remaining instances of alleged retaliation, which are more 14 directly connected to the SVREP Lawsuit. 15 With respect to the remaining instances of alleged retaliation, Marquez has not 16 provided any facts showing that she made a statement about by-district elections in 17 some context other than in the course of her duties as a City Councilmember. Rather, 18 it appears that the other members of the City Council came to know of Marquez’s 19 support for by-district elections through Marquez’s position and subsequent vote as to 20 how the City Council should respond to the SVREP Lawsuit. For example, Marquez 21 alleges that she “was the only member [of City Counsel] who supported district-based 22 elections.”6 (Compl. ¶ 31.) She opposed litigating the SVREP Lawsuit because she 23 believed litigation “would not be cost-effective” and agreed with SVREP’s position 24 that a by-district election system would “improve representation on the City Council.” 25 (Id.) Marquez’s voting record and discussions with her fellow City Councilmembers 26

6 Marquez also alleges that she voted “against transitioning to by-district elections.” (Compl. ¶ 56.) 27 This appears to be a typographical error as the gravamen of the Complaint is that Marquez was 28 retaliated against for her support of transitioning to by-district elections. (See id. ¶¶ 9, 31–32, 57–58, 66.) 1 regarding how the City should respond to potential litigation are very much part and 2 parcel of Marquez’s position as an elected official. A discussion among members of a 3 governing body leading up to a vote generally qualifies as advocating for that issue’s 4 passage or failure. Such a discussion is distinct from statements made to non- 5 legislators or members of the press, which could be more fairly characterized as 6 “inherently expressive acts.” See Carrigan, 564 U.S. at 128. While Marques also 7 alleges that she “repeatedly stated her belief that the City should transition to a by- 8 district election system,” there is little to no information about when or in what 9 context Marquez made these statements. (Compl. ¶ 57.) Without more, Marquez falls 10 short of establishing she engaged in protected speech. 11 In their Reply brief, Defendants argue that Marquez’s presentation to Cypress 12 High School students does not qualify for First Amendment protections due to the 13 “time, place, and manner” of that speech. (Reply 3–4.) However, it is unclear to the 14 Court if Marquez is arguing that her presentation qualifies for First Amendment 15 protection. The Court understands Marquez’s argument to be that Defendants 16 retaliated against her for her support for election reform and her alignment with 17 groups such as the SVREP. (See Compl. at 6 (“The Cypress City Council Majority 18 Retaliates Against Dr. Marquez for Exercising Her Free Speech Rights Regarding 19 By-District Elections”), ¶ 31 (alleging “because of [her support for by-district 20 elections] Dr. Marquez was singled out by the other members of the City Council and 21 subjected to unlawful treatment.”).) Marquez presents Resolution 6905 as more 22 evidence of unfair actions taken against her despite any wrongdoing. (Id. ¶ 49.) If 23 Marquez is alleging her statements at the high school qualify as protected speech, she 24 must make that argument explicitly. 25 In support of her First Amendment retaliation claim, Marquez relies heavily on 26 Boquist. However, that case is distinguishable. In Boquist, Senator Boquist, a state 27 legislator, made two statements that other senators considered threatening. 32 F.4th 28 at 772–73. One statement was made on the senate floor but was not part of Boquist’s 1 opposition to a bill; rather, Boquist told the Senate President “if you send the state 2 police to get me, Hell’s coming to visit you personally.” Id. at 772. The other 3 statement was given to a reporter. Id. Boquist told the reporter, “Well, I’m quotable, 4 so here’s the quote. This is what I told the state police superintendent: Send bachelors 5 and come heavily armed. I’m not going to be a political prisoner in the state of 6 Oregon. It’s just that simple.” Id. (brackets omitted). As a result of these statements, 7 the senate leadership required Boquist to give twelve hours advance notice whenever 8 he planned to enter the state capitol building, so that the senate could increase security. 9 Id. at 772–73. The Ninth Circuit held that Boquist’s complaint “raised a plausible 10 inference” that his statements were protected speech. Id. at 780. 11 However, the situation presented in Boquist is distinct from situations where a 12 government official’s speech is directly related to their use of legislative power. See 13 Carrigan, 564 U.S. at 128. As the Ninth Circuit explained in Linthicum v. Wagner: 14 Boquist was a very different case. Senator Boquist there was not exercising the “legislative power” as Carrigan conceived it; he was 15 making statements, including to a reporter, not engaging in a 16 “governmental act.” Indeed, Carrigan drew a distinction between the 17 First Amendment’s lack of protection for a legislator engaging in “a governmental act” or using “governmental mechanics” of the legislative 18 process, and the personal rights of legislators to engage in speech. As 19 Carrigan noted, “[a] legislator voting on a bill is not fairly analogized to one simply discussing that bill or expressing an opinion for or against it. 20 The former is performing a governmental act as a representative of his 21 constituents; only the latter is exercising personal First Amendment rights.” 22 23 94 F.4th at 894 (internal citations omitted). 24 Marquez’s situation is more like those presented in Carrigan and Linthicum 25 than that in Boquist. In Carrigan, the Supreme Court held that a Nevada state law 26 requiring a city council member to recuse himself from voting on a project proposal 27 was not unconstitutional because “government acts” are not entitled to First 28 Amendment protection. 564 U.S. at 127–28. In defining what amounts to a 1 “government act,” the Supreme Court included activity beyond legislative voting to 2 encompass any activity which implicates “governmental mechanics” of the legislative 3 process, meaning any official action in the legislature that tends to “the passage or 4 defeat of a particular proposal.” Id. at 125–27. Applying the Carrigan holding to the 5 facts at issue in Linthicum, the Ninth Circuit held that state senators’ walking out of 6 legislative proceedings to prevent the senate from having enough persons present to 7 reach a quorum amounted to a governmental act under Carrigan and therefore did not 8 qualify as protected speech under the First Amendment. 94 F.4th at 893–95. 9 As pleaded, Marquez’s Complaint does not allege that Marquez engaged in any 10 activity that would fall outside the scope of the “government acts” envisioned under 11 Carrigan. As the Carrigan majority puts it, while “an inherently expressive act 12 remains so despite its having governmental effect, . . . it is altogether another thing to 13 say that a governmental act becomes expressive simply because the governmental 14 actor wishes it to be so. We have never said the latter is true.” Carrigan, 564 U.S. 15 at 128. Although the Court takes the pleadings in the light most favorable to Marquez, 16 the Court cannot substitute missing elements of a claim. See Boquist, 32 F.4th at 774 17 (noting that the court will not “supply essential elements of a claim that are absent 18 from the complaint”). Here, Marquez has not plausibly alleged or provided facts 19 showing that her general support for by-district elections qualifies as protected speech. 20 Accordingly, the Court finds that Marquez has failed to make a prima facie case for a 21 First Amendment retaliation. 22 Therefore, the Court dismisses all causes of action as they relate to violations of 23 the First Amendment. The remaining claims sound in common law and are before this 24 Court under supplemental jurisdiction.7 (See Compl. ¶ 20–21 (alleging federal 25 jurisdiction pursuant to 42 U.S.C. § 1983 and supplemental jurisdiction over all other 26 claims).) Therefore, in dismissing the constitutional claims, the Court also dismisses 27 7 Although Marquez’s third and fourth claims cite to the United States Code, these code sections 28 concern the Court’s ability to create remedies and issue writs. Neither code section supports an independent cause of action based in federal law. (See Compl. ¶¶ 76–86.) 1 || the remaining claims for lack of jurisdiction. As Marquez could plausibly amend her 2 || complaint to show her speech was constitutionally protected, the Court grants leave to 3 || amend.® 4 V. CONCLUSION 5 For the reasons discussed above, the Court GRANTS Defendants’ Motion. 6 || (ECF No. 13.) The action is dismissed without prejudice. If Marquez chooses to 7 || amend, the First Amended Complaint is due no later than twenty-one (21) days from 8 | the date of this Order. If Marquez does not timely amend, the dismissal of Marquez’s 9 || causes of action as they relate to violations of the First Amendment shall be deemed a 10 || dismissal with prejudice. 1] 12 IT IS SO ORDERED. 13 □□ 14 February 26, 2025 bedi 15 / 16 ( 7 OTIS D. WRIGHT, I ig UNITED STATES DISTRICT JUDGE

19 20 21 22 23 24 25 26 27 28 || ® Marquez could amend her complaint and re-file in this Court, or alternatively, Marquez could proceed with the state law claims in a state court.