1

Thomas J. Eastmond – State Bar No. 211591

Ryan S. Riddles – State Bar No. 298745
2 GOE & FORSYTHE, LLP
3 18101 Von Karman Avenue, Suite 1200
Irvine, CA 92612
4 teastmond@goeforlaw.com
5 rriddles@goeforlaw.com
Telephone: (949) 798-2460
6 Facsimile: (949) 955-9437
7
Counsel for Riley’s American
8 Heritage Farms and James Patrick Riley
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION
12
13 RILEY’S AMERICAN HERITAGE Case No. 5:18-cv-02185 JGB (SHKx)
FARMS, a California corporation; (1)
14 JAMES PATRICK RILEY, an
15 individual,
Plaintiffs, PLAINTIFFS’ SUPPLEMENTAL
16
BRIEF RE: FIRST AMENDMENT
17 v. RETALIATION STANDARD
CLAREMONT UNIFIED SCHOOL APPLICABLE TO CONTRACTORS
18
DISTRICT, a California school NOT ANALOGOUS TO
19 district; JAMES ELSASSER, an GOVERNMENT EMPLOYEES
20
individual; STEVEN LLANUSA, an
individual; HILARY LACONTE, an Date: December 17, 2018
21 individual; BETH BINGHAM, an (No appearance)
22
individual; NANCY TRESER
OSGOOD, an individual; DAVID S.
23 NEMER, an individual; ANN
24 O’CONNOR, an individual; and
BRENDA HAMLETT, an individual,
25
Defendants.
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 1 Plaintiffs Riley’s American Heritage Farms (“Riley’s Farm”) and James
2 Patrick Riley (“Mr. Riley”) (collectively, “Plaintiffs”) hereby submit, pursuant to
3 the Court’s order of December 10, 2018, requesting supplemental briefing of the
4 following issue:
5  What First Amendment retaliation standard applies to parties with
whom the government contracts but that do not provide services that
6 could ordinarily be provided by government employees?
7 II. INTRODUCTION
8 The two possible candidates for which retaliation standard to apply in this
9 case are:
10  The Pickering balancing test, applied to [certain] government
contractors in Umbehr and O’Hare,1 or,
11
 The “more First Amendment friendly standard enunciated in Perry [v.
12
Sindermann, 408 U.S. 593]”, i.e., the default standard applicable to
13 speech by ordinary private citizens.2
14 The determination of which standard applies turns on whether “the
15 relationship involved was analogous to an employer-employee relationship.” (See
16 id. at 881-882; emphasis added.)
17 Under either standard, Plaintiffs’ Complaint properly pleads its claims for
18 relief based on First Amendment retaliation. Under the specific facts of this case,
19 the proper standard is the private-citizen standard of Perry, as the “interests of the
20 government as employer” cited in Pickering are entirely absent here, where
21 Plaintiffs much more closely resemble private citizens than public employees.
22

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24 1
See Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518
U.S. 668, 679-679, (1996); Pickering v. Board of Ed. of Township High School
25 Dist. 205, Will Cty., 391 U.S. 563, 568 (1968); O’Hare Truck Serv. v. City of
Northlake, 518 U.S. 712 (1996).
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(See Blackburn v. City of Marshall, 42 F.3d 925, 932 (5th Cir. 1995), cited and
applied in CarePartners LLC v. Lashway, 545 F.3d 867, 881 (9th Cir. 2008).)
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 1 III. ARGUMENT
2 A. The “Ordinary Citizen” – Employee Distinction.
3 Supreme Court precedents “have long since rejected Justice Holmes’ famous
4 dictum, that a policeman ‘may have a constitutional right to talk politics, but he has
5 no constitutional right to be a policeman.” (See McAuliffe v. Mayor of New
6 Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892).) Recognizing that
7 “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of
8 governmental [efforts] that fall short of a direct prohibition against the exercise of
9 First Amendment rights,” (see Laird v. Tatum, 408 U.S. 1, 11, 33 (1972), the
10 modern “unconstitutional conditions” doctrine holds that the government “may not
11 deny a benefit to a person on a basis that infringes his constitutionally protected . . .
12 freedom of speech,” – even if he has no entitlement to that benefit. (Perry v.
13 Sindermann, 408 U.S. 593, 597; see also See Board of County Commissioners,
14 Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 674.)
15 The First Amendment thus forbids government officials from retaliating
16 against individuals for speaking out. (Hartman v. Moore, 547 U.S. 250, 256
17 (2006); Blair v. Bethel School Dist., 6087 F.3d 540, 543 (9th Cir. 2010).) Absent
18 the additional considerations that may come into play when the target of retaliation
19 is a public employee, or an independent contractor analogous to an employee (as
20 discussed in greater detail below), the elements of a claim for retaliation consist of
21 the following (O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016):
22
 The plaintiff engaged in constitutionally protected activity.
23  As a result, the plaintiff was subjected to adverse action by the
24 defendant that would chill a person of ordinary firmness from
engaging in the protected activity.
25
 There was a substantial causal relationship between the
26 constitutionally protected activity and the adverse action.
27 If the plaintiff is a public employee, or employee-analogous independent
28 contractor, the burden then shifts to the public employer to demonstrate either that,
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 1 under the balancing test established by Pickering v. Bd. of Educ., 391 U.S. 563,
2 568 (1968), the employer's legitimate administrative interests outweigh the
3 employee's First Amendment rights or that, under the mixed motive analysis
4 established by Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
5 (1977), the employer would have reached the same decision even in the absence of
6 the employee's protected conduct. (See Umbehr, supra, 518 U.S. 668, 675-76
7 (1996); Thomas v. City of Beaverton, 379 F.3d 802 (9th Cir. 2004).)
8 Accordingly, an important threshold question, in a First Amendment
9 retaliation case, is whether the plaintiff is an ordinary citizen (“whose viewpoints
10 on matters of public concern the government has no legitimate interest in
11 repressing”; see Umbehr, supra, 518 U.S. at 680) or an employee (or a person
12 analogous to an employee), where “the government's interest in achieving its goals
13 as effectively and efficiently as possible is elevated from a relatively subordinate
14 interest when it acts as sovereign to a significant one when it acts as employer.”
15 (Id. at 676.) This distinction is crucial, because “a governmental employer may
16 impose certain restraints on the speech of its employees, restraints that would be
17 unconstitutional if applied to the general public.” (City of San Diego v. Roe, 543
18 U.S. 77, 80 (2004).)
19 B. Plaintiffs Are More Closely Analogous To Ordinary Citizens Than
20 To Public Employees.
21 “[I]n evaluating whether a plaintiff should be considered a public employee,
22 we consider whether the relationship between the parties is analogous to that
23 between an employer and employee and whether the rationale for balancing the
24 government’s interests in efficient performance of public services against public
25 employees’ speech rights applies.” (Clairmont v. Sound Mental Health, 632 F.3d
26 1091, 1101, citing CarePartners, LLC v. Lashway, 545 F.3d 867, 881 (9th Cir.
27 2008) and Blackburn v. City of Marshall, 42 F.3d 925, 932-34 (5th Cir. 1995);
28 emphasis added).)
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 1 Umbehr provides that the Pickering balancing test applies to at least some
2 persons who do business with government – i.e., those Umbehr classified as
3 “independent contractors.” (Umbehr, supra, 518 U.S. at 678-679.) Similarly, the
4 case of Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, held that “[w]hen a
5 business vendor operates under contract with a public agency, we analyze its First
6 Amendment retaliation claim under § 1983 using the same basic approach that we
7 would use if the claim had been raised by an employee of the agency.” (Id. at 923
8 [citing Umbehr].)
9 However, it is also evident that not all persons who do business with
10 government agencies are included within the Pickering framework. For instance,
11 in Alameda Newspapers v. City of Oakland, 95 F.3d 1406 (9th Cir. 1996), the
12 Ninth Circuit, citing North Mississippi Communications, Inc. v. Jones, 792 F.2d
13 1330, 1336-37 (5th Cir. 1986), held that the “First Amendment protects newspapers
14 from retaliation by government agencies on account of articles or views that the
15 newspapers have published.” (Id. at 1421.) The Alameda Newspapers court
16 distinguished such illegal First Amendment-based retaliation from action taken
17 based on the “internal policies or business conduct of [the newspapers’] owners”
18 (in that case, actions involving a labor dispute). In North Mississippi
19 Communications, on the other hand, the government defendants had withdrawn
20 valuable legal advertisements and other business from a paper based on its
21 criticism of them. This the court ruled unconstitutional:
22 Although the Times may have had no “right”to receive
certain legal advertising from the County Board of
23 Supervisors, it would violate the Constitution for the
Board to withhold public patronage, in the form of its
24 advertising, from the Times in retaliation for that
newspaper's exercise of first amendment rights, or, in
25 similar reprisal to threaten commercial advertisers with a
loss of county business should they continue to advertise
26 in the Times. To permit such actions would “allow the
27
government to 'produce a result which [it] could not
command directly,” that is, denying the Times business in
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retaliation for its protected speech.

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 1 (North Mississippi Communications, Inc. v. Jones, 792 F.2d at 1337; see also
2 Kinney v. Weaver, 367 F.3d 337, 359-360 (5th Cir. 2004) [explaining why the
3 Pickering balancing analysis did not apply in North Mississippi Communications,
4 i.e., because the relationship between the agency and the newspaper was not
5 “sufficiently analogous to an employment relationship”].)
6 Whether the “relationship between the parties is analogous to that between
7 an employer and an employee and whether the rationale for balancing the
8 government’s interest in efficient performance of public services against public
9 employees’ speech rights applies” is a fact-intensive analysis, which may not
10 readily resolvable early in a proceeding in the context of a motion to dismiss. (See
11 Martin v. Naval Crim. Investigative Serv., 2011 U.S. Dist. LEXIS 162766, *21
12 (C.D. Cal. 2011) [quoting Clairmont, supra, 632 F.3d at 1100].) However, if the
13 cutoff for applying Pickering instead of Perry lies somewhere on the “spectrum”
14 between ordinary citizens at one end and public employees at the other, it is hard to
15 see how Plaintiffs could be considered closer to the latter. Pickering and its
16 progeny have identified specific categories of administrative interests that may (if
17 substantial enough) outweigh an employee’s or contractor’s free speech rights.
18 Courts evaluate “whether the speech (1) impaired discipline or control by
19 superiors; (2) disrupted co-worker relations; (3) eroded a close working
20 relationship premised on personal loyalty and confidentiality; (4) interfered with
21 the speaker’s performance of his or her duties; or (5) obstructed routine office
22 operations…Moreover, [courts may weigh] (6) whether the speaker directed the
23 statement to the public or the media, as opposed to a governmental colleague…(7)
24 whether the speaker served in a high-level, policy-making capacity; and (8)
25 whether the statement was false or made with reckless disregard for the truth.”
26 (Gilbrook v. City of Westminster, 177 F.3d 839, 868 (9th Cir. 1999.) None of these
27 considerations will typically apply in a situation where a person doing business
28 with government “do[es] not provide services that could ordinarily be provided by
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 1 government employees.”3 (Cf. Umbehr, supra, 518 U.S. at 854 [referencing the
2 frequent use of independent contractors to perform “tasks that would…otherwise
3 be performed by salaried Government employees”].)
4 These considerations would certainly not apply in the context of the
5 District’s purchase of field trips to Riley’s Farm. Riley’s Farm and its staff are not
6 subject to “discipline and control” by District supervising officials. Its staff are not
7 “co-workers” with the District’s employees. There is no contention that the arm’s
8 length commercial relationship involves a “close working relationship premised on
9 personal loyalty and confidentiality.” All of these considerations are those that
10 would typically apply in the context of formal employment, or an “independent
11 contractor” relationship closely analogous to employment. They are a poor fit for
12 an arm’s length commercial transaction for the purchase of single-day field trips.
13 “For purposes of a 42 U.S.C. § 1983 claim, whether a person is an employee
14 of a public body is a question of state law….Whether an individual is an
15 employee…depends upon…a factual determination of the extent to which the
16 purported employer has the right to control the performance of services by the
17 individual.” (Colby v. Coos County, 2012 U.S. Dis. LEXIS 10410, *9 (D. Or.
18 2012) [citing Collins v. City of Harker Heights, TX, 503 U.S. 115, 128].) Under
19 California law, in addition to the “control” test, other factors consistent with an
20 employment relationship include (a) whether the one performing services is
21 engaged in a distinct occupation or business; (b) whether the kind of work
22 performed is usually done under the direction of the principal or by a specialist
23 without supervision; (c) the skill required in the occupation; (d) whether the
24 principal or the worker supplies the tools and workplace; (e) the length of time for
25 which the services are to be performed; (f) the method of payment, whether by the
26 time or by the job; (g) whether the work is part of the regular business of the
27
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3
See the Court’s Civil Minutes of December 10, 2018, requesting this supplemental
briefing.
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 1 principal; and (h) whether the parties believe they are creating the relationship of
2 employer-employee. (S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations, 48
3 Cal. 3d 341, 352 (Cal. 1989).)
4 In literally none of these things does Riley’s Farm resemble an employee of
5 the District. Riley’s Farm’s agritourism operations are distinct from the District’s
6 focus on providing primary and secondary education. The field trip presentations
7 are not provided under direction by the District. Living history requires skills
8 (blacksmithing, musketry, and fife and drum, to name some examples) very
9 distinct from the District’s focus. The field trip services are performed on Riley’s
10 Farm’s premises, with its own tools and implements. The field trips are typically
11 distinct one-day engagements. Payment is by the job. Neither party considers
12 itself employed by the other.4
13 Under these circumstances, the considerations that Pickering identifies as
14 arising from the government’s role as employer, or analogous-to-employer – as
15 distinct from its role as sovereign – simply do not apply. Private American citizen
16 James Patrick Riley wrote some things that the District found distasteful, and the
17 District abused its power as sovereign to retaliate against him and Riley’s Farm.
18 Under the basic, First Amendment-friendly Perry standard that applies to private
19 citizens, the District’s officials stand without defense or excuse.
20 C. The Less Analogous To Employment, The Stronger The First
21 Amendment Protection.
22 Defendants may argue that if Plaintiffs are not deemed the equivalent of
23 public employees, they have no First Amendment protection against retaliation at
24
25 4
In contrast, in Clairmont v. Sound Mental Health, supra, where the plaintiff’s
relationship with the public entity was deemed “analogous to that of an employer
26 and employee,” the services were provided on the defendant’s courthouse premises,
a close working relationship with the defendant’s employees there was maintained,
27 the work schedule was a regular 40-hour week, the plaintiff’s work was “at all
28 times” subject to the public entity’s “review and approval,” and the number of
service hours was tracked and reported. (Clairmont, supra, 632 F.3d at 1102.)
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 1 all. That would have it backwards. If retaliation analysis runs on a “spectrum”
2 from “public employee” through “independent contractor analogous to employee,”
3 to “independent vendor analogous to private citizen,” thence finally to “pure
4 private citizen” – there is no “gap” in this spectrum through which the independent
5 vendor plummets into a Constitution-free abyss. That was the district court’s error
6 corrected on appeal in Blackburn, supra, 42 F.3d at 932 (finding plaintiff was not a
7 public employee gave him more First Amendment protection, not less); see also
8 Kinney v. Weaver, supra, 367 F.3d at 358 (“[T]he situation in which the economic
9 relationship between the government and the speaker is the most attenuated would
10 be the case in which the speaker is an ordinary citizen with no employment-related
11 ties to the government”).
12 As the Supreme Court explained in Perry, the focus of First Amendment
13 retaliation law is not whether the plaintiff had a property interest or other
14 entitlement to a valuable government benefit, but rather whether government
15 takes it away for an unconstitutional reason. (Perry, supra, 408 U.S. at 597.)
16 The issue “is the government’s duty not to punish protected speech, not the
17 citizen’s supposed ‘right’ to government patronage.” (Kinney v. Weaver, supra,
18 367 F.3d at 357.)
19 D. If Perry Does Not Apply, Plaintiffs’ Complaint Satisfies Pickering-
20 Umbehr.
21 If, notwithstanding the above, Plaintiffs are obligated to satisfy the more
22 rigorous Pickering test, as applied to (at least some) independent contractors via
23 Umbehr – the Complaint’s allegations amply suffice to satisfy that test as well, as
24 set forth at length in the Plaintiff’s Opposition.
25 IV. CONCLUSION
26 In its capacity as employer, or in an economic relationship analogous to
27 employment, government may – in order to avoid “constitutionaliz[ing] the
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 1 employee grievance”5 and grinding the public workplace entirely to an
2 uncontrollable halt – impose certain necessary restraints on the speech of its
3 employees, restraints that would be unconstitutional if applied to the general
4 public.” (City of San Diego v. Roe, 543 U.S. 77, 80 (2004).) In contrast, however,
5 when government acts as sovereign, dealing with private citizens in relationships
6 not analogous to employment, the Constitution is unyielding: Public officials have
7 “no legitimate interest” in repressing ordinary citizens’ viewpoints on matters of
8 public concern. (Umbehr, supra, 518 U.S. at 680.)
9 Plaintiffs’ economic relationship with the District, though longstanding, was
10 not at all analogous to an employment relationship, and none of the workplace
11 efficiency considerations undergirding the Pickering balancing test apply.
12 Ultimately, this case involves one simple fact: Mr. Riley said something that
13 conflicted with District officials’ perception of what is orthodox, and they abused
14 their sovereign power to retaliate.
15 The First Amendment is an extraordinary engine of civilizational cohesion,
16 allowing people with the most profound philosophical and cultural differences to
17 coexist and flourish together. Exceptions to its protection must be few, tightly
18 defined, and justified only by the most compelling public interests. None are
19 present here.
20
21 Date: December 17, 2018 GOE & FORSYTHE, LLP

22

23 By:/s/Thomas J. Eastmond
Thomas J. Eastmond
24 Counsel for Plaintiffs Riley’s
25 American Heritage Farms and James
Patrick Riley
26
27
28 5
See Garcetti v. Ceballos, 547 U.S. 410, 420 (2006).
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 PROOF OF SERVICE OF DOCUMENT
1
I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business
2 address is: 18101 Von Karman Avenue, Suite 1200, Irvine, CA 92612

3 A true and correct copy of the foregoing document entitled (specify): PLAINTIFFS’ SUPPLEMENTAL
BRIEF RE: FIRST AMENDMENT RETALIATION STANDARD APPLICABLE TO CONTRACTORS NOT
4 ANALOGOUS TO GOVERNMENT EMPLOYEES will be served or was served (a) on the judge in
chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner stated below:
5
1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to
6 controlling General Orders and LBR, the foregoing document will be served by the court via NEF and
hyperlink to the document. On (date) December 17, 2018, I checked the CM/ECF docket for this
7 bankruptcy case or adversary proceeding and determined that the following persons are on the Electronic
Mail Notice List to receive NEF transmission at the email addresses stated below:
8 Service information continued on attached page
 Thomas J Eastmond
9 teastmond@goeforlaw.com
 Golnar Jabbari Fozi
10 gfozi@meyersfozi.com,dmodafferi@meyersfozi.com,kwright@meyersfozi.com,cweston@meyersfo
zi.com,npontious@meyersfozi.com,jdwork@meyersfozi.com,lklinger@meyersfozi.com
11  Daniel Stephen Modafferi
dmodafferi@meyersfozi.com,nmeyers@meyersfozi.com,gfozi@meyersfozi.com,cweston@meyersf
12 ozi.com,kwright@meyersfozi.com,jdwork@meyersfozi.com,lklinger@meyersfozi.com,twiseman@m
eyersfozi.com
13  Ryan Scott Riddles
rriddles@goeforlaw.com
14
2. SERVED BY UNITED STATES MAIL:
On (date) December 17, 2018, I served the following persons and/or entities at the last known addresses in
15 this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed
envelope in the United States mail, first class, postage prepaid, and addressed as follows: Listing the judge
16 here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the
document is filed.
17 Service information continued on attached page

18
19 3. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR EMAIL:
(state the method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on
20 (date) December 17, 2018, I served the following persons and/or entities by personal delivery, overnight
mail service, or (for those who consented in writing to such service method), by facsimile transmission
21 and/or email as follows: Listing the judge here constitutes a declaration that personal delivery on, or
overnight mail to, the judge will be completed no later than 24 hours after the document is filed.
22
 The Honorable Jesus G. Bernal, USDC, 3470 Twelfth Street, Riverside, CA 92501
23  The Honorable Magistrate Shashi H. Kewalramani, 3470 Twelfth Street, Riverside, CA 92501

24 Service information continued on attached page

25 I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

26 December 17, 2018 Susan C. Stein /s/Susan C. Stein

Date Printed Name Signature
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