ORDER RE RECONSIDERATION OF DEFENDANT'S DEFENSE AS TO PLAINTIFF'S FOURTH CAUSE OF ACTION (RETALIATION)

DEAN D. PREGERSON, District Judge.

Presently before the Court is a motion to reconsider or clarify the Court's order of September 18, 2014, granting in part Defendant's Motion for Judgment on the Pleadings. (Dkt. No. 23.) In that order, the Court dismissed Plaintiff's claims as to wrongful termination and intentional infliction of emotional distress on the grounds of statutory governmental immunity under Cal. Gov't Code § 815. However, Defendant also asserted statutory immunity as to Plaintiff's Fourth Cause of Action (common law retaliation). (Dkt. No. 12 at 2:16.) That claim is now the Second Cause of Action in Plaintiff's First Amended Complaint ("FAC"). The Court's order made no mention of the immunity defense, and so Defendant seeks clarification as to whether the defense was considered. Defendant also seeks reconsideration of the order in light of the fact that the arguments for immunity as to retaliation claims are essentially identical to those the Court accepted as to wrongful termination and intentional infliction of emotional distress.1

A district court may revise its own orders "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Fed.R.Civ.P. 54(b). The order of September 18, 2014 did not adjudicate all the claims, rights, and liabilities of the parties, because it denied judgment on the pleadings as to some of Plaintiff's claims.

Under the Central District's Local Rule 7-18, "[a] motion for reconsideration of the decision on any motion may be made only on the grounds of," inter alia, "a manifest showing of a failure to consider material facts presented to the Court before such decision." "Reconsideration is appropriate if the district court .. . committed clear error . . . ." Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

The Court finds that Defendant brings this motion for reconsideration on the grounds of the Court's failure to consider a material fact presented to it-the applicability of Cal. Gov't Code § 815 to Plaintiff's retaliation claim. Although the immunity defense was clearly presented to the Court with regard to the retaliation claim, the Court inadvertently did not consider the defense and proceeded instead to determine whether Plaintiff had sufficiently pled a prima facie case of retaliation under Federal Rule of Civil Procedure 8. (Dkt. No. 23 at 22:24-25:12.) This was clear error, and reconsideration and revision of the September 18 order are warranted.

The Court therefore now considers whether Defendant is entitled to immunity under Cal. Gov't Code § 815 with regard to the retaliation claim.

Cal. Gov't Code § 815 provides: "Except as otherwise provided by statute . . . [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." (emphasis added). Lloyd v. Cnty of Los Angeles, the case the Court cited in dismissing the other causes of action in its previous order, held that § 815 bars common law actions against the state based on retaliation in violation of public policy expressed in statutes, including Cal. Labor Code § 1102.5. 172 Cal.App.4th 320, 329-30 (2009).

However, the Lloyd court did not appear to find claims based on violations of the statutes themselves barred by § 815; rather, it considered those claims on the merits. Id. at 332. The court's discussion of those merits is not published, but the court stated in the published portion of the opinion that "[n]o triable issue of material fact" existed with regard to the statutory violations. Id. By contrast, the court found it "unnecessary to address whether a triable issue exists" as to the common law claims, because they "fail[ed] to state a claim." Id. at 329. This suggests that summary judgment as to the statutory violations was granted on grounds of evidentiary insufficiency rather than on grounds of immunity.2 The Lloyd court's apparent distinction between statutory and common law causes of action accords with Miklosy v. Regents of Univ. of California, 44 Cal.4th 876, 899 (2008), which approved the approach taken in Palmer v. Regents of University of California, 107 Cal.App.4th 899 (2003), where the Court of Appeals found that the plaintiff could pursue a statutory claim for damages but not a common-law "Tameny" action.

Thus, the Court finds that as a matter of California law, state agencies are entitled to immunity as to common law claims based on retaliation in violation of public policy as expressed in statutes. But they are not entitled to immunity as to claims rooted in statutory violations.

The title of Plaintiff's cause of action, in both the original Complaint and the FAC, is "Retaliation in Violation of Public Policy." (FAC at 24:6.3) The cause of action asserts that the retaliation "violated federal and state constitution proscriptions,"4 and then it states that "Labor Code § 1102.5 protects employees" who speak out about allegedly illegal practices. (Id. at 26:27-27:9.) These allegations seem clearly intended to support the idea that the retaliation was in violation of public policy. The Complaint does not state that the wrong complained of is the statutory violation, rather than the violation of public policy. Plaintiff now argues, however, that the retaliation claim is indeed statutory in nature. (Opp'n at 8:12-9:5.)

The Court cannot clearly discern an intent, in either the original Complaint or the FAC, to assert a claim of retaliation in violation of Cal. Labor Code § 1102.5 rather than (or even in addition to) a common law action based on the violation of public policy. Nor do plaintiff's allegations seem clearly directed at proving the elements of such a claim. Moreover, Defendant's arguments and the Court's analysis in the previous motion were based on an understanding that the retaliation claim was a common law claim. Given the confusion that could result if the case moved forward on a new understanding of the claim, the Court finds that the most appropriate course of action is to dismiss the claim as apparently a common law claim barred by immunity, but grant Plaintiff leave to amend to state a claim for the statutory violation.

Accordingly, the motion to reconsider is GRANTED, the Second Cause of Action in the FAC is DISMISSED, and Plaintiff is GRANTED LEAVE TO AMEND solely to state a claim for a statutory violation of Cal. Labor Code § 1102.5, if such a claim is warranted. Such amendment must be filed not later than ten days after the effective date of this order.

IT IS SO ORDERED.