Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Mariposa County., No. 9453, Wayne R. Parrish, Judge.
Law Offices of Linda L. Daube and Linda L. Daube for Plaintiffs and Appellants.
Borton Petrini and John J. Hollenback, Jr., for Defendants and Respondents.
OPINION
Wiseman, Acting P.J.
This case arises from the termination by defendant Lake Don Pedro Community Services District (the district) of the employment of plaintiff Robert D. Kent, its general manager, and plaintiff Kimberly R. Topie, its treasurer. The superior court sustained the district’s demurrer without leave to amend and dismissed the complaint. As we will explain, the court should have granted leave to amend with respect to the first cause of action (retaliatory discharge in violation of Lab. Code § 1102.5), the third cause of action (defamation), and the fifth cause of action (deprivation of due process). Kent and Topie do not challenge the dismissal of the remaining causes of action. We affirm in part, reverse in part, and remand.
FACTUAL AND PROCEDURAL HISTORIES
This is the second appeal we have decided arising from the termination of Kent’s and Topie’s employment. The first was from the dismissal on demurrer of Kent and Topie’s petition for a writ of mandate seeking to nullify the terminations and direct the district to comply with the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) before terminating Kent and Topie again. Our opinion in that appeal, which reversed the judgment of dismissal, stated the essential facts, which we summarize as follows: Kent and Topie were fired by the district’s board at an open public meeting on July 29, 2008. No reasons for the terminations were given at that meeting, but Kent and Topie had both been accused of misconduct at closed meetings held earlier. When Kent and Topie filed claims for unemployment insurance benefits, the district filed papers opposing the claims, saying Kent and Topie had been fired because of misconduct. Kent and Topie claimed the accusations against them must have originally been heard by the board members in meetings which had not been properly noticed in accordance with the Brown Act. (Kent v. Lake Don Pedro Community Services District (Apr. 30, 2010, F058131) [nonpub. opn.], pp. 3-5.)
This case is a separate lawsuit, a complaint for damages. The defendants are the district and members of its board, Sally Punte, Jean Barclay, Eleanor Duste, Kalvin Gile, and George Snyder. The district’s board collectively also appears to be named as a defendant, though it is not included in the case caption. There is no explanation in the record of how the board and the district might amount to different entities, and we will assume in our discussion that “the district” and “the board” are simply two names for Lake Don Pedro Community Services District. Kent and Topie filed the complaint on January 15, 2009.
Although the trial court dismissed the entire complaint, Kent and Topie challenge the dismissal of only the first, third, and fifth causes of action in this appeal, so we will limit our discussion to those three causes of action. In the first cause of action, headed “WRONGFUL TERMINATION-RETALIATION, ” the complaint alleged that the district fired Kent for warning the district or members of its board that they had engaged in or might be about to engage in improper activities. First, in 2003, before defendant Gile’s election to the board, Gile asked Kent about making special deliveries of raw water to Gile’s residence for irrigation. Kent said this would be a form of favoritism violating district policy and state law. The complaint alleged that Kent was afterward informed that Gile engaged in a retaliatory campaign to have Kent fired. Next, in 2008, Kent allegedly “brought recent legal developments regarding budgetary compliance measures to the attention of the Board and requested that the Board undertake certain actions in order to comply with new financial accounting directives.…” Instead of following Kent’s recommendations, the district blamed Kent and Topie for the district’s “dire financial status” and conspired to terminate their employment. In doing so, the district allegedly held secret meetings in violation of the Brown Act. Kent warned the district that this also was unlawful. Based on these allegations, the complaint claimed that Kent’s and Topie’s terminations “were in violation of State ‘whistleblower’ protections pursuant to California Government Code § 12653 and California Labor Code § 1102.5, and were in retaliation for Plaintiffs’ efforts in disclosing the inefficient, improper, and unlawful practices of the Board.” This cause of action was directed against the district, the board, and Gile.
The complaint’s third cause of action, directed against the individual board members, was headed “DEFAMATION.” It alleged three distinct defamatory actions. First, “Defendants, prior to and following Plaintiffs’ termination from employment, communicated and/or caused to be published false and unprivileged statements concerning Plaintiffs’ competency and job performance that injured Plaintiffs’ professional reputations. These communications were made both directly, and through agents, to members of the [district] staff and to members of the public, as well as to members of other public agencies.” Second, “Defendants, prior to and following Plaintiffs’ termination from employment, communicated false and unprivileged statements concerning the reasons Plaintiffs were terminated, thereby causing negative speculation as to the true reasons for Plaintiffs’ termination.… [A]t the July 29 public meeting where the Board voted to terminate Plaintiffs, a member of the public asked why Plaintiffs were terminated. The Board refused to comment, but fielded questions about the possibility of a forensic audit, thereby fueling speculation of fiduciary wrongdoing or misconduct by Plaintiffs.” Third, “Defendants, prior to and following Plaintiffs’ termination from employment, communicated, both directly and through agents, false and defamatory statements about the reasons for termination to the EDD [Employment Development Department], thereby preventing KENT from receiving unemployment benefits and challenging TOPIE’s receipt of such benefits.”
The complaint did not include a recitation of any of the allegedly defamatory statements. Some of these statements were placed before the court by the district, however. In support of its demurrer, the district filed a request for judicial notice of Kent and Topie’s writ petition, to which were attached copies of the documents the district submitted to the EDD. These documents included letters drafted by the district’s counsel to support the district’s opposition to the unemployment insurance claims. The letters made allegations of misconduct. Counsel’s letter to the EDD about Kent explained that the district had purchased a new system for reading water meters for over $400,000 and then learned that the system did not work. The letter alleged, among other things, that Kent had hidden adverse information about the system from the board prior to the purchase and had removed or destroyed records about the system. The letter further stated that Kent’s behavior constituted misconduct and dishonesty. It quoted a section of the Government Code providing for a prison term for theft or destruction of government records. The letter also alleged that Kent failed to supervise Topie adequately, with the result that the district’s financial accounts were in disarray. In a later letter in which the district appealed from an administrative law judge’s ruling on Kent’s unemployment claim, counsel expanded on these allegations, now stating that Kent purchased the water meter system without proper authorization. Counsel’s letter about Topie stated that she did not perform her job with competence or diligence, failed to keep proper payroll and benefits records, and did not correctly reconcile the district’s accounts. It also stated that Topie once falsified her time card by attending a lunch that “took longer than the 1/2 hour allot[t]ed for lunch.…” Finally, the letter alleged that, before the termination, Topie “was reported” to have said she wanted to watch a board member’s house burn; after the termination, she said she wanted to blow up the district. Counsel described these remarks as “the making of terrorist threats.”
The fifth cause of action in Kent and Topie’s complaint was headed “DEPRIVATION OF CIVIL RIGHTS UNDER THE FIRST AND FOURTEENTH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983).” It stated that “Plaintiffs’ denial of due process rights in the events leading to their wrongful termination including, but not limited to, Defendants’ retaliatory actions in response to Plaintiffs’ disclosure of financial compliance issues and the Board’s lack of compliance with State open meeting laws are violations of the Fourteenth Amendment.” No specific defendants were listed for this cause of action.
The district filed its demurrer on June 1, 2009, asserting that the complaint failed to state any cause of action. It argued that the first cause of action was barred by the Tort Claims Act (Gov. Code, § 810 et seq.). Specifically, it contended that Kent and Topie’s claim was a common-law claim for wrongful discharge in violation of public policy (i.e., the public policy expressed in the statutes cited in the complaint), and that this type of claim is barred by Government Code section 815, which abolishes all public entity liability except liability provided by statute. The district argued that the third cause of action failed because it did not set forth any specific defamatory statements. It argued that the fifth cause of action failed because the federal Constitution does not afford at-will public employees any due process rights against termination.
Kent and Topie filed an opposition to the demurrer, submitting with it a proposed amended complaint. On the first cause of action, they contended that their claim was not a common-law action based on the public policy expressed in statutes, but was instead a statutory action based directly on Labor Code section 1102.5. In the proposed amended complaint, the first cause of action was headed “RETALIATION IN VIOLATION OF LABOR CODE § 1102.5.” It stated that Kent’s and Topie’s “terminations were in violation of California Labor Code § 1102.5, and were in retaliation for Plaintiffs’ efforts in disclosing the inefficient, improper, and unlawful practices of the Board.” On the third cause of action, Kent and Topie argued that the EDD documents submitted to the court by the district contained specific defamatory statements and that Kent and Topie might learn of additional specific statements through discovery. On the fifth cause of action, Kent and Topie cited case law stating that due process principles may entitle even an at-will employee to a “name clearing hearing” where a public employer’s charges of misconduct stigmatize the employee and damaged his or her opportunity to earn a living. The proposed amended complaint specified that this cause of action was directed against all defendants.
On August 26, 2009, the court sustained the demurrer without leave to amend. On the first cause of action, the court agreed with the district that “[t]he action is barred as to the Board by Government Code section 815.” Further, “[a]s to Kalvin Gile, there is no allegation that an employment relation exists or existed.” On the third cause of action, the court ruled that the complaint “failed to set forth the necessary recitation of the alleged defamatory statements, and therefore, failed to state a cause of action.” On the fifth cause of action, the court wrote that “the demurrer is sustained as there is no valid constitutionally protected right alleged as plaintiffs were ‘at will’ employees.” The court dismissed the action in its entirety with prejudice on September 11, 2009.
DISCUSSION
Our task is to determine whether the court abused its discretion, either by sustaining the demurrer or by denying leave to amend with respect to each of the three causes of action at issue. The standard of review is well established:
“In an appeal from a judgment dismissing an action after a general demurrer is sustained without leave to amend, our Supreme Court has imposed the following standard of review. ‘The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]’ [Citations.]” (Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603.)
The court abused its discretion in denying Kent and Topie leave to amend their first cause of action. The court’s implied view that there was no reasonable possibility of curing defects by amendment was based on a misunderstanding-advanced in the district’s briefs on the demurrer and again on appeal-of case law holding that the Tort Claims Act immunizes a public entity from a common-law action for wrongful discharge in violation of public policy. That case law does not bar an action based directly on a statute. Although the court could reasonably determine that Kent and Topie did not adequately allege a direct violation of Labor Code section 1102.5, there is a reasonable possibility that they can do so by amendment.
The reference in the original complaint to Government Code section 12653 is deleted in the proposed amended complaint, and Kent and Topie do not mention that section in their appellate briefs. We assume they have abandoned any claim based on it.
The Tort Claims Act “abolishes common law tort liability for public entities.” (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899.) This includes liability under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny), which established the common-law tort of wrongful discharge in violation of public policy. (Miklosy, supra, at p. 898.) In a Tameny action, the plaintiff must show that his or her discharge was contrary to a fundamental public policy expressed in a constitutional or statutory provision. (Miklosy, supra, at p. 898.)
Some statutes give rise to an action both directly, by their own operation, and indirectly, by expressing a public policy that can form the basis of a Tameny claim. A plaintiff might wish to plead both, thinking, for instance, that even if all the elements of the statutory claim cannot be proved, perhaps enough of them can be proved to show that the employer violated the spirit of the public policy expressed in the statute. If the defendant is a public entity, the Tameny claim will be barred by the Tort Claims Act but the statutory claim will not. In Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, the plaintiff alleged a cause of action for retaliation in violation of Labor Code section 1102.5 and other statutes. He then alleged an additional cause of action under Tameny for wrongful termination in violation of the public policy expressed by those statutes. (Lloyd, supra, at p. 324.) The Court of Appeal applied Miklosy and held that summary judgment was properly granted on the Tameny claim because the defendant was a public entity and the Tort Claims Act barred the claim. (Lloyd, supra, at pp. 328-329.) The court did not apply similar reasoning to uphold summary judgment on the claim based directly on Labor Code section 1102.5. It instead examined the merits of that claim. (Lloyd, supra, at p. 332.) The published portion of the opinion indicates that summary judgment was upheld as to that claim on other grounds discussed in an unpublished portion of the opinion. (Ibid.)
In this case, the district cites Miklosy and Lloyd in support of its contention that Kent and Topie’s Labor Code section 1102.5 claim is barred by the Tort Claims Act. The district appears to argue that Lloyd held that no claim based on Labor Code section 1102.5, either directly or indirectly via Tameny, can be brought against a public entity. This is a misunderstanding of Lloyd and the underlying holding in Miklosy, which pertain only to common-law actions. The district also asserts that Kent and Topie’s claim is nothing but a Tameny claim: “Appellants’ First Cause of Action pled nothing different from a garden-variety retaliatory-discharge claim under Tameny.” We do not agree with this interpretation of the complaint, but even if we did, we would still conclude that sustaining the complaint without leave to amend was improper. It is error to sustain a demurrer if the complaint alleges a cause of action under anypossible legal theory, not just the legal theory the complaint itself mentions. Further, it is error to deny leave to amend if there is any reasonable possibility of amending the complaint to state a cause of action. If the complaint alleged a cause of action directly under Labor Code section 1102.5, as opposed to under Tameny, or could be amended to do so, then sustaining the demurrer without leave to amend was not within the court’s discretion.
Apart from its mistaken interpretation of Miklosy and Lloyd, the district has advanced no reason why a public entity cannot be sued directly under Labor Code section 1102.5. There are numerous published cases in which employees brought actions directly under the section against public employers, and, although the employees were not always successful, none of the cases has held that the claim is categorically unavailable where the employer is a public entity. (See, e.g., Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1381 [triable issue of material fact existed in public high school principal’s suit against school district for retaliation in violation of Lab. Code, § 1102.5].) These cases do not actually consider the issue of whether a Labor Code section 1102.5 claim should be available against a public employer, however, and we will turn to that question now.
It is settled that public employers are liable for violations of another statute that protects employees against retaliation (among other things), the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA). In the context of a challenge to the right of a state civil service employee to sue a government employer under FEHA, our Supreme Court explained that the Legislature made clear its intention to subject all public entity employers to liability. The court cited Government Code section 12926, subdivision (c), which defined “employer” as including public entities. This provision is now in subdivision (d) of the same section. (State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 429.)
Similar reasoning shows that Labor Code section 1102.5 also was intended to apply to public entity employers. Section 1102.5 prohibits an employer from “retaliat[ing] against an employee for disclosing information to a government or law enforcement agency” where the employee reasonably believes the information reveals unlawful conduct by the employer. (Lab. Code, § 1102.5, subd. (b).) The section includes no definition of “employer, ” but it has a provision that shows the Legislature must have intended the statute to cover government employers. Subdivision (e) of section 1102.5 provides: “A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).” In other words, the statute encompasses retaliation for a report by a government agency employee to the agency of the agency’s own misconduct. This language presupposes that government agency employers can be liable for this kind of retaliation.
We consider, finally, whether the complaint succeeded in alleging a cause of action under Labor Code section 1102.5. Section 1102.5, subdivision (b), provides:
“An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.”
The elements of a claim under this section are that the employee disclosed information to a government or law enforcement agency; that the employee had reasonable cause to believe the information disclosed a violation of a state or federal statute, rule, or regulation; that the employer took adverse employment action against the employee; and that there was a causal link between the employee’s disclosure and the employer’s adverse action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 62, 69; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) To survive a demurrer, the complaint would have to allege facts supporting these elements.
The court could properly sustain the demurrer as to this cause of action because it could reasonably conclude that the complaint did not adequately allege facts supporting all the elements. The first cause of action does not mention any particular state or federal statutes, rules, or regulations (though it does refer to “Brown Act requirements”) or allege that Kent reasonably believed the district violated them. For instance, the allegation that Kent “brought recent legal developments regarding budgetary compliance measures to the attention of the Board and requested that the Board undertake certain actions in order to comply with new financial accounting directives” does not appear to involve the reporting of any violation of a state or federal statute, rule, or regulation. Similarly, the reference to Kent’s “bringing various financial compliance issues and other wrongful and improper Board activity” to the district’s attention does not allege that Kent reported conduct he reasonably believed to be in violation of state or federal law.
The court was required, however, to grant leave to amend. It is reasonably possible that Kent and Topie have particular law violations in mind-violation of the Brown Act or other state laws-which they could allege in an amended complaint. A proposed amended complaint, which did not cure the defects we have described, was before the trial court when it ruled, but this does not mean Kent and Topie have already had an opportunity to try to make adequate allegations. The defects we have discussed were not identified before the trial court, either in the demurrer or in the court’s order sustaining it. Kent and Topie must be given the chance to cure them on remand.
Kent and Topie’s appellate briefs contain no discussion of the court’s ruling dismissing the first cause of action as to defendant Gile on the separate ground that he was not an employer, so we will not disturb that ruling. Kent and Topie will have leave to amend the first cause of action as to the district only.
II. Defamation
The trial court accepted the district’s argument that the defamation cause of action should be dismissed without leave to amend because the complaint failed to recite specific defamatory statements. On appeal, Kent and Topie argue that they should at least have been granted leave to amend because numerous specific defamatory statements were before the court in the form of the EDD documents of which the district requested judicial notice. The district now abandons its original argument that the complaint failed to recite defamatory statements, which appears nowhere in its appellate brief, and instead contends for the first time that the litigation privilege set out in Civil Code section 47, subdivision (b), bars any action based on the statements in the EDD documents.
We conclude that there is a reasonable possibility that Kent and Topie can amend their complaint to allege defamatory statements adequately. We will not rule on the issue of the litigation privilege since it has been raised for the first time on appeal, but even if the trial court ultimately rules that the privilege applies to the statements in the EDD documents, the complaint refers to other defamatory statements that Kent and Topie may be able to allege adequately in an amended complaint.
Defamation is libel or slander. Libel is written defamation and slander is spoken defamation. (Civ. Code, §§ 45, 46; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 530, pp. 782-783.) To plead libel adequately, the complaint must set forth the words of the allegedly libelous written statement. Less particularity is necessary to plead slander, however, especially where the defendant has superior knowledge of the facts. Pleading the substance of the slanderous oral statement is enough. (Okun v. Superior Court (1981) 29 Cal.3d 442, 458; Des Granges v. Crall (1915) 27 Cal.App. 313, 314-315; 6A Cal.Jur.3d (2003) Assault and Other Wilful Torts, § 294, pp. 522-523.)
In this case, the complaint did not adequately allege either libel or slander. The complaint refers to “statements concerning Plaintiffs’ competency and job performance that injured Plaintiffs’ professional reputations”; “statements concerning the reasons Plaintiffs were terminated”; and “statements about the reasons for termination to the EDD.” To plead slander adequately, Kent and Topie would have to allege the substance of these statements, and to plead libel adequately, they would have to set forth the words of the statements. They did neither.
Other allegations in the complaint indicate that Kent and Topie might be able to plead at least slander sufficiently. In the general allegations at the beginning of the complaint, Kent and Topie allege that they were called into closed-session board meetings and falsely accused of misconduct. Kent and Topie might be able to quote the language of slanderous statements made in those meetings or, by inference, allege the substance of slanderous statements board members must have made to one another or to others prior to the meetings. Therefore, we conclude that it is reasonably possible that Kent and Topie could plead a cause of action for defamation in an amended complaint, and they must be given leave to amend on remand. Again, it makes no difference that the court had before it a proposed amended complaint when it ruled, which did not correct the defects we have identified. The court merely adopted the district’s argument that the complaint failed to recite the words of the alleged defamatory statements. Since this misstates the pleading standard at least for slander, and since the court denied leave to amend even though the exact words of some allegedly libelous statements had been placed before it in the form of the EDD documents, we cannot say Kent and Topie had a reasonable opportunity to correct the defects.
The EDD documents could provide a basis for an amended claim of libel. They contain numerous written statements adverse to Kent and Topie. The trial court must determine in the first instance whether the litigation privilege of Civil Code section 47, subdivision (b), applies to these statements. There is authority for the view that it does. (Williams v. Taylor (1982) 129 Cal.App.3d 745, 754 [in slander case, employer’s statements to EDD about reasons for employee’s dismissal were absolutely privileged because they were made in connection with official proceeding].)
III. Title 42 United States Code section 1983
Section 1983 of title 42 of the United States Code creates a civil cause of action for a violation of a plaintiff’s federal constitutional rights. The district argued, and the trial court concluded, that Kent and Topie failed to allege that any of their federal constitutional rights were violated because at-will employees are not entitled to any kind of pretermination hearing before being dismissed from government jobs. We agree with Kent and Topie that a somewhat different federal constitutional right might cover their situation. They must be granted leave to amend their complaint to allege a violation of that right.
An at-will public employee has no interest protected by the federal Constitution in keeping his or her government job. (Board of Regents v. Roth (1972) 408 U.S. 564, 569-575.) An employee of that kind does, however, have a liberty interest, protected by the federal Constitution’s guarantee of due process, in not being wrongly stigmatized by a statement of false reasons for termination that “might seriously damage his standing and associations in his community.” (Board of Regents v. Roth, supra, at p. 573.) It has been held that the employee is entitled to notice and a hearing before being subject to this type of stigmatizing dismissal (Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 346), and the employee’s remedy where this right has been violated is a subsequent hearing at which the employee has an opportunity to refute the charges and clear his or her name. (Ibid; Codd v. Velger (1977) 429 U.S. 624, 627; see also Arnett v. Kennedy (1974) 416 U.S. 134, 157 (plur. opn.).) These principles have been applied by California courts. (Lubey, supra, at pp. 345-346; see also Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 306-307.)
Kent and Topie argued in the trial court and argue again on appeal that this is the nature of their claim and that what they seek is a name-clearing hearing. In its reply brief, the district admits that this type of due process claim exists. Its only arguments are that the complaint did not clearly specify this type of claim and that the remedy of damages sought is not available for the claim.
We agree that the complaint does not clearly assert the claim. The complaint refers to a denial of due process “in the events leading to [plaintiffs’] wrongful termination including, but not limited to, Defendant’s retaliatory actions in response to Plaintiffs’ disclosure of financial compliance issues and the Board’s lack of compliance with State open meeting laws.…” In the proposed amended complaint, Kent and Topie add that the district violated their due process rights by means of its “failure to provide [them] the opportunity to respond to and refute allegations of misconduct.…” These allegations do not make clear that Kent and Topie are saying the district engaged in conduct that stigmatized them and damaged their standing in the community. Because there is a reasonable possibility that Kent and Topie could make those allegations, however, leave to amend is required.
The fact that Kent and Topie might have prayed for the wrong remedy is of no consequence at the demurrer stage. A claim for an improper remedy can be attacked in a motion to strike, but not in a general demurrer. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶ 7:42.1, p. 7(I)-20.)
The California Supreme Court has held that a claim based on the state Constitution for a name-clearing hearing cannot be a basis for a damages remedy. (Katzberg v. Regents of University of California, supra, 29 Cal.4th 300.) We decline to decide whether a damages remedy exists based on the federal Constitution, since this appeal is from a ruling on demurrer to determine whether a cause of action has been or can be stated and not from an order on a motion to strike an improper remedy.
DISPOSITION
The judgment of dismissal and the order sustaining the demurrer without leave to amend are affirmed with respect to the second and fourth causes of action and with respect to the first cause of action so far as it is directed against defendant Kalvin Gile. The judgment of dismissal and the order sustaining the demurrer without leave to amend are reversed with respect to the third and fifth causes of action and with respect to the first cause of action so far as it is directed against defendant Lake Don Pedro Community Services District. The case is remanded to the trial court for further proceedings. The trial court shall grant plaintiffs Kent and Topie leave to amend the first, third, and fifth causes of action. Kent and Topie shall recover their costs on appeal.
WE CONCUR: Kane, J., Poochigian, J.