Ashbritt, Inc. v. Ghilarducci

Background

AshBritt, Inc. brought claims under 42 U.S.C. § 1983, a federal civil-rights statute, against Mark Ghilarducci, the Director of the California Governor’s Office of Emergency Services, and Ken DaRosa, the Acting Director of the California Department of Resources Recycling and Recovery. AshBritt alleged that the defendants violated its First Amendment rights by adopting a “California Only Restriction” for a May 2020 solicitation involving fire-related tree removal in Butte County.

According to the Third Amended Complaint, AshBritt’s chairman criticized the way California paid contractors during a 2015 conference call with Ghilarducci. AshBritt alleged that Ghilarducci then said he would try to prevent AshBritt from working in California. AshBritt also alleged that its bids for Camp Fire and Woolsey Fire cleanup work in December 2018 or January 2019 were rejected, that it protested those awards, and that a newspaper article reported AshBritt’s criticism of the state’s bidding process.

The May 2020 solicitation limited eligibility to certain California-based businesses or businesses with specified California facilities, licensing, and employment histories. AshBritt alleged that it would have bid on the project but for the restriction and that the restriction was adopted to retaliate against its chairman’s 2015 comments and AshBritt’s 2019 newspaper-related criticism.

Claims and Prior Proceedings

The Third Amended Complaint asserted a § 1983 claim for First Amendment retaliation and a request for declaratory relief based on the same alleged violation. The court had previously dismissed AshBritt’s Privileges and Immunities Clause claim and had dismissed earlier versions of the damages claim for failure to state a claim and the declaratory-relief claims as barred by the Eleventh Amendment.

Court’s Analysis

The court explained that a First Amendment retaliation claim requires allegations showing protected activity, an action that would discourage an ordinarily firm person from continuing that activity, and that the protected activity was a substantial or motivating factor in the defendant’s conduct. To ultimately prevail, a plaintiff must also establish a causal connection between the alleged retaliatory intent and the resulting injury. The required causal showing is “but-for” causation: the adverse action would not have occurred without the retaliatory motive.

The court found AshBritt’s allegation that retaliation was a substantial or motivating factor to be conclusory and merely a formulaic repetition of the claim’s elements. It also concluded that Ghilarducci’s 2015 statement and the 2019 newspaper article did not plausibly show that CalRecycle adopted a restriction applying broadly to non-California companies in order to retaliate against AshBritt. The court emphasized the five-year gap between the alleged 2015 statement and the restriction, the one-year gap between the newspaper article and the restriction, and the restriction’s broad application to companies outside California rather than its specific targeting of AshBritt.

The court identified an “obvious alternative explanation” for the restriction: encouraging the economic recovery and well-being of residents in an area affected by a disaster or state of emergency. It rejected AshBritt’s argument that a California-wide restriction did not benefit the local community, reasoning that California residents could benefit from state spending going to California companies with California employees. The court also found that CalRecycle’s explanation that a November 2018 emergency proclamation suspended procurement-law requirements to the extent necessary to expedite debris removal was logical and did not support an inference of retaliation.

AshBritt conceded that it could not allege an ongoing violation of federal law for purposes of declaratory relief. The court therefore dismissed that claim as barred by the Eleventh Amendment, which generally limits certain suits against states and state officials but does not bar claims for prospective relief against state officers for ongoing violations of federal law. The court concluded that AshBritt’s concession left only the First Amendment retaliation claim.

Disposition

The court dismissed the First Amendment retaliation claim for failure to state a claim and did so without leave to amend because AshBritt had received multiple opportunities to correct the pleading deficiencies and had not identified a basis for doing so. The court granted defendants’ motion to dismiss without leave to amend. Judgment was to be entered by separate order, and the order disposed of Docket No. 30.