Francis John Broccolo v. ACLU Foundation of Southern California, et al.  

DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

 

MOVING PARTY: Defendants American Civil Liberties Union Foundation of Southern California and American Civil Liberties Union of Southern California

RESPONDING PARTY(S): Plaintiff Francis John Broccolo

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Francis John Broccolo brings this action against Defendants American Civil Liberties Union Foundation of Southern California and American Civil Liberties Union of Southern California. Plaintiff, a former member of the ACLU Foundation Board, was selected to be Defendants’ Interim Executive Director in mid-2023. However, a contingent of Defendants’ staff objected to Plaintiff’s hiring based on his past political activities. In response, the Board changed course and terminated Plaintiff’s employment. By doing so, Plaintiff alleges Defendants committed an unlawful and unfair business practice by terminating Plaintiff as a direct result of his political activities, in violation of California Labor Code sections 98.6(a), 1101, and 1102. He asserts a single cause of action for injunctive relief under Business and Professions Code section 17200 et. seq.

Defendants now move for judgment on the pleadings. Plaintiff opposed.

TENTATIVE RULING:

Defendants’ Motion for Judgment on the Pleadings is DENIED. 

Plaintiff is ordered to give notice, unless waived.

DISCUSSION:

Motion for Judgment on the Pleadings

I. Meet and Confer

II. Legal Standard

The rules applicable to demurrers also apply to motions for judgment on the pleadings.    (County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32.) A motion for judgment on the pleadings is properly granted when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed. (Code Civ. Proc., § 438, subd. (d).) The trial court must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.  (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-20.) “A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)

III. Analysis

A. Allegations in the Complaint

Plaintiff Francis John Broccolo, an attorney, served on the Board of Directors for the ACLU Foundation for twelve years. (Compl. ¶ 22.) After being diagnosed with non-Hodgkins lymphoma, Plaintiff “chose not to seek another term on the Foundation Board when his term ended in March 2023.” (Id. ¶ 34.) “[I]n recognition of his many years of service and extensive contributions to the Organization, the Foundation Board unanimously voted to make Plaintiff an emeritus member of the Board.” (Id. ¶ 35.)

In July of 2023, the ACLU SoCal decided to terminate its executive director. (Id. ¶ 37.) Michele Goodwin, the then Chair of the Foundation Board, contacted Plaintiff and asked him “if he would like to serve as an Interim Executive Director, until a new ‘permanent’ Executive Director could be found.” (Id. ¶ 39.) Plaintiff was initially dismissive of the opportunity because he had travel plans abroad in the coming months and “concern[s] that his cancer might return.” (Id. ¶ 40.) However, after some consideration, Plaintiff accepted the position. (Id. ¶ 44.) On July 14, 2023, the Boards unanimously voted to hire Plaintiff as Interim Executive Director and sent an announcement to staff. (Id. ¶ 52.) 

On July 19, 2023, “a contingent of Defendants’ Staff…sent a letter to all other Staff and the Boards” objecting to Plaintiffs’ hiring “because of some of his political activities.” (Id. ¶ 6.) The Letter “made the absurd claims that Plaintiff was ‘opposed [to] the stated values and positions of [ACLU SoCal]’ and that Plaintiff had ‘taken positions directly at odds with [its] core values and principles.’” (Id. ¶ 8.) These positions allegedly included: [1] “Plaintiff had ‘taken positions’ indicating that he did not support the ‘abolition of carceral systems”’(i.e., the complete elimination of all prisons and jails); [2] Plaintiff had ‘opposed…rent control,’ referring to Plaintiff’s participation in public debates six years ago in his personal capacity, when he presented data indicating that rent control can reduce the supply of affordable housing over time; and [3] References to ‘statements’ Plaintiff made nearly ten years ago in defense of police officers’ constitutional rights when they are accused of crimes.” (Id.) 

Plaintiff alleges these positions “were fully consistent with ACLU SoCal’s positions on political issues,” and based on his years of service to the ACLU, “no one could plausibly claim that Plaintiff’s prior political activities or beliefs would adversely affect his work for the Organization.” (Id. ¶ 10.) Despite this, the Board convened an emergency meeting shortly after receiving the Letter and “decided to terminate Plaintiff’s employment as a direct result of the objections to Plaintiff’s political activities, without even bothering to send him the July 19 Letter or discuss the matter with him first.” (Id. ¶ 11.) 

Plaintiff alleges the Boards’ actions “violated California Labor Code §§ 98.6(a), 1101, and 1102 and Business & Professions Code § 17200, et seq., which prohibit employers from terminating or taking other adverse employment action against employees for their political activities and/or beliefs.” (Id.) Plaintiff now “brings this action solely in the public interest, to obtain injunctive relief protecting individuals’ right to be free of adverse employment action based upon their political activities and beliefs.” (Id. ¶ 14.) 

B. Standing Under the UCL

First, Defendants argue that Plaintiff lacks standing to pursue a claim under the UCL. They contend he has not suffered an “injury in fact” because he “never worked for Defendants, and the only plausible lost wages that he can allege is future lost wages,” which is not a remedy allowed under the UCL. (Mtn. 11: 24-26.) 

“Historically, the UCL authorized any person acting for the interests of the general public to sue for relief notwithstanding any lack of injury or damages. That changed in 2004 with the electorate's approval of Proposition 64.” (Campbell v. FPI Mgmt., Inc. (2024) 98 Cal. App. 5th 1151, 1167.) Standing under the UCL now “is limited to any ‘person who has suffered injury in fact and has lost money or property’ as a result of unfair competition.” (Animal Legal Def. Fund v. LT Napa Partners LLC (2015) 234 Cal. App. 4th 1270, 1278.)  The injury must also be caused by the unfair competition.  (Id. at 1279.)  However, “economic injury for purposes of UCL standing, even after Proposition 64, is not limited to out-of-pocket expenditures for which no value has been received, or to objectively determined overpayments.” (Campbell, supra, 98 Cal. App. 5th at 1168.) Rather, “an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.” (Id.)

“California courts have regularly held that plaintiffs have standing to bring suit under the UCL when they are subjected to an invasion of economic or property rights, or face imminent legal peril, even when they do not suffer actual out-of-pocket financial damages or loss of tangible property.” (Id. at 1169.) “The existence of an enforceable obligation, without more, ordinarily constitutes actual injury or injury in fact.”  (Sarun v. Dignity Health (2014) 232 Cal. App. 4th 1159, 1167 [Plaintiff alleged UCL standing where he received inflated medical bill even though he alleged he “had no intention of paying” it].)

Here, Plaintiff has alleged that he “accepted” the position; that Goodwin, acting for the ACLU, informed Plaintiff that he “would be an employee” and “assumed that [he] would want to be compensated.” (Compl. ¶¶ 45-49.) Plaintiff and Goodwin allegedly agreed that the ACLU “would employ him under the same terms as Villagra’s employment,” except that “Goodwin emphasized that Plaintiff would be an “Interim Executive Director;” and his “term of employment would end when a new ‘permanent’ Executive Director started employment.” (Id. ¶ 48.) 

“Plaintiff agreed to these terms,” but “proposed that they prepare and sign a written contract to memorialize their agreement…” (Id. ¶ 49.) “Goodwin responded that, while she agreed this was a good idea, she wanted to ‘treat this conversation as an acceptance’ and ‘make sure that [they were] in agreement’ presently (or words to that effect), because she wanted to move forward with the Transition relying on Plaintiff serving in the Interim Executive Director role. Plaintiff confirmed that they had an agreement.” (Id. ¶ 50.) 

“Thereafter, in reliance on the parties’ agreement, Plaintiff spent substantial time during his trip in Europe preparing for his new role, including: (a) preparing a list of issues he and the Transition and Search Committee should address; (b) preparing a list of the categories of information he would need to obtain; (c) preparing a list of information that he and the Boards should collect from Staff in a survey or through interviews, to ensure that their needs were being met; (d) re-reviewing ACLU SoCal’s Strategic Plan; and (e) reviewing other materials.” (Id. ¶ 51.) 

Here, Plaintiff has alleged that he and the ACLU unambiguously agreed that Plaintiff was the new Interim Executive Director of the ACLU. This came with the mutual assumption that Plaintiff would be compensated for the role. Plaintiff then expended time and resources preparing for the role on the belief that he was, in fact, the new Interim Executive Director. Days later, the Boards “terminate[d] his employment” after receiving the letter.” (Id. ¶ 78.) These allegations must be accepted as true at this stage. (Stevenson Real Estate Services, Inc., supra, 138 Cal.App.4th at 1219-20.) Therefore, as a result of the termination based on his past political activities, Plaintiff has alleged a loss of money in the form of payment he would have received as Interim Executive Director. This loss of future income is an “injury in fact” sufficient to confer standing under the UCL.

It is true, as noted by Defendants, that these allegations may not be sufficient to entitle Plaintiff to restitution—after all, Plaintiff seeks only injunctive relief. (See Mtn. 11: 20-22, citing Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1149 [no restitution where plaintiff does “not have an ownership interest in the money it seeks to recover from defendants”].) 

But courts must be mindful not to “conflate[] the issue of standing with the issue of the remedies to which a party may be entitled. That a party may ultimately be unable to prove (or may chose to waive) a right to damages [or restitution] does not demonstrate that it lacks standing to argue for its entitlement to them.” (Clayworth v. Pfizer, Inc. (2010) 49 Cal. 4th 758, 789.)

C. Sham Pleading

Next, Defendants argue the Complaint is a “sham pleading.” Under the Sham Pleading Doctrine, “[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. [Citation.] Likewise, the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false. [Citation.]”  (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal. App. 4th 336, 344).  

Plaintiff alleges that that the ACLU “suffers from a policy of discrimination” and that the Boards “decided to terminate Plaintiff’s employment as a direct result of the objections to Plaintiff’s political activities.” (Compl. ¶¶ 11, 15.) Plaintiff goes on to allege that, in truth, “none of the alleged political activities described in the July 19th Letter are inconsistent with any ACLU SoCal Position (even if one were to take the letter’s misleading account of Plaintiff’s prior political activities at face value).” (Id. ¶ 73.)

In support of sham pleading, Defendants argue Plaintiff “cannot logically plead that the Boards decided to terminate his alleged employment as a direct result of the objections to his political activities, but also plead that none of the alleged political activities described in the July 19th Letter are inconsistent with any ACLU SoCal Position. He is essentially alleging that he was terminated for conducting political activities that aligned with Defendants’ own positions and beliefs regarding those political activities.” (Mtn. 13: 1-4.) 

Plaintiff misstates the Complaint and the Sham-Pleading doctrine. First, the doctrine applies only where a Plaintiff pleads facts in an amended complaint that are irreparably inconsistent with those pled in a prior version. That is not the case here. Second, the allegations highlighted by Plaintiff are not necessarily inconsistent with each other. Plaintiff is alleging that the “positions” of the Board are not in align with the stated positions of the ACLU. It is effectively Plaintiff’s position that the Boards’ members have substituted the ACLU’s policies with their own. Put differently, Plaintiff contends his past political activities are in accord with the ACLU’s mission—thus, it is the Board who has it wrong. 

D. Violations of the Labor Code

Next, Defendants argue Plaintiff has not alleged violations of the Labor Code sections 98.6(a), 1101, or 1102.

Business and Professions Code section 17200 (“section 17200”) defines “unfair competition” to include “any unlawful, unfair or fraudulent business act or practice....” “The scope of section 17200 is broad, encompassing ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ ... It governs ‘anti-competitive business practices’ as well as injuries to consumers, and has as a major purpose ‘the preservation of fair business competition.’” [Citations.] (Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal. App. 4th 115, 133).  

Here, the court need not address whether these code sections are sufficient to evince an “unlawful” practice under the act. That is because Plaintiff also alleges the practice was “unfair.” Whether he has done so cannot be resolved at this stage because whether a practice is unfair “is generally a question of fact which requires ‘consideration and weighing of evidence from both sides’ and which usually cannot be made on demurrer.” [Citation].  (Id.) 

E. First Amendment Rights

Next, Defendants argue that injunctive relief, “if granted by this court, would violate the right of expressive association of both Defendants and their employees” and “would clearly violate the First Amendment of The United States Constitution.” (Mtn. 18: 5-7.) 

Defendants rely only on Boy Scouts of America v. Dale (2000) 530 U.S. 640, 648. There, the Supreme Court of the United States held that New Jersey's public accommodations law violated the Boy Scouts’ First Amendment right of expressive association where it forced the Boy Scouts to readmit “an avowed homesexual and gay rights activist.” (Id.) 

Defendants, however, have provided no authorities applying the law in the context of an employment relationship.  [FN 1]  In the absence of any analysis on that issue, the court declines to hold at this pleading stage that the First Amendment bars the claim.  No special motion to strike was filed by Defendants.

F. Respondeat Superior

Finally, Defendants argue that they cannot be held vicariously liable for the acts of the staff members who drafted the letter. “[U]nder the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. [Citation.] (Mary M. v. City of Los Angeles (1991), 54 Cal. 3d 202, 208).

This is irrelevant to the case here because the alleged liability is based on the Boards decision to terminate Plaintiff. Whether the employees who drafted the letter were acting within the scope of their employment has nothing to do with the Boards’ decisions to terminate Plaintiff for his political positions.

Accordingly, Defendants’ Motion for Judgment on the Pleadings is DENIED. 

IV. Concluding Remarks

As indicated by this Court at prior hearings, it is still struggling to see the actual purpose or goal of this litigation in view of the fact that the Plaintiff has expressly waived any and all damages (economic and non-economic) and has expressly and unequivocally stated that he is only seeking “injunctive relief” in this case.

Once again, this Court is still left to wonder what exactly the Plaintiff wants this Court to enjoin the Defendants from doing in the future.  Don’t violate sections 98.6 (a), 1101 and/or 1102 the Cal. Labor Code?  That is what is expressly stated in Paragraph 100 in the Complaint, as well as Paragraph 1 of the Prayer for Relief.  Upon first glance, and absent some compelling circumstances, that rather broad requested injunctive relief seems highly unlikely, since a future person whose rights may have been violated by the Defendants under these Labor Code sections would seem to have an adequate remedy at law.  [FN 2] 

Be that as it may, the Plaintiff will be given a fair opportunity to present his case, and this Court will determine whether injunctive relief is warranted under the applicable laws and facts.  However, that will now take place sooner than later.

It is this Court’s intention to set this matter for a trial/hearing in the next month or so that this matter can be heard on a priority basis, given the nature of the issues presented.   Meanwhile, this Court is also contemplating staying any and all discovery, or at the very minimum, issuing an order limiting discovery to only items which are needed in view of the narrow issues presented in this case.

Given the current discovery disputes, it appears that this matter has become more “personal” than warranted.   This Court is certainly willing to resolve any reasonable discovery disputes, as may be needed.  [FN 3] 

Counsel should be prepared to address these issues at the hearing on the current discovery motions, which is set for the same date and time as this pending MJOP.

IT IS SO ORDERED.

Dated:   April 9, 2025 ___________________________________

FN 1 - This Court is certainly authorized to issue injunctive relief as to “labor disputes.”  C.C.P. §527.3.  Whether this case involves such a labor dispute remains to be seen.

FN 2 - Additionally, although the Complaint also expressly states that the requested injunctive relief will somehow magically “not restrain the Defendants’ rights to free speech,” that certainly raises problematic First Amendment issues for this Court to determine.   Moreover, it appears that the Plaintiff may want this Court to substitute its own personal judgment on such issues (e.g., hiring and firing of the executive Director) in lieu of the duly elected or appointed Board.

FN 3 - This Court recognizes and appreciates that the parties have recently attempted to resolve these discovery disputes in a reasonable manner.  See, Stipulation and Order (4/4/25)