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Case No. 17-CV-00007-LHK 

ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JACQUELINE ZHANG,

Plaintiff,

v.

COUNTY OF MONTEREY, MONTEREY 

COUNTY RESOURCE MANAGEMENT 

AGENCY, and MONTEREY COUNTY 

PARKS DEPARTMENT,

Defendants.

Case No. 17-CV-00007-LHK 

ORDER RE: ELEMENTS OF DUE 

PROCESS CLAIMS

Plaintiff Jacqueline Zhang (“Plaintiff”) sues Defendants County of Monterey, Monterey 

County Parks Department, and Monterey County Resource Management Agency (collectively, 

“the County”) for causes of action arising out of the County’s termination of Plaintiff’s 

employment with the County. Two of Plaintiff’s causes of action will be tried by a jury: (1) 

Plaintiff’s fourth cause of action for deprivation of property without due process of law in 

violation of the Fourteenth Amendment of the United States Constitution, brought pursuant to 42 

U.S.C. § 1983, and (2) Plaintiff’s sixth cause of action for deprivation of property without due 
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Case No. 17-CV-00007-LHK 

ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS

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United States District Court

Northern District of California

process of law in violation of Article I, Section 7 of the California Constitution.1 For the benefit of 

the parties, the Court sets forth the elements for the causes of action to be tried. 

I. DISCUSSION

The Court discusses in turn each of the causes of action to be tried: (1) Plaintiff’s due 

process claim under the United States Constitution, and (2) Plaintiff’s due process claim under the 

California Constitution. 

A. Plaintiff’s Due Process Claim under the United States Constitution

Generally, to bring a federal due process claim, the plaintiff must show: “(1) a deprivation 

of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural 

protections.” Brewster v. Bd. of Educ., 149 F.3d 971, 982 (9th Cir. 1998). In a case brought by a 

discharged employee, the employee must show: (1) the deprivation of a property right in 

continued employment, and (2) the denial of appropriate procedural protections during 

termination. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 542 (1985).

Accordingly, first, Plaintiff must show that she was deprived of a property right in her 

continued employment. To show that she was deprived of a property interest in her employment, 

Plaintiff must show that she was a permanent employee and could be dismissed only for cause. 

“Public employees who may be dismissed only for cause possess a property interest in their 

continued employment.” Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 968 (9th Cir. 

2011); Dorr v. Butte County, 795 F.2d 875, 876 (9th Cir. 1986) (citations omitted) (“[A] 

‘permanent employee,’ dismissible only for cause, has a property interest in [her] continued 

employment which is protected by due process.”). However, employees who can be dismissed 

with or without cause do not have a protected property interest in their employment. See Walls, 

653 F.3d at 968; Dorr, 795 F.2d at 876 (stating that “a probationary (or nontenured) civil service 

employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good 

cause”). 

1 Plaintiff’s one remaining cause of action, Plaintiff’s petition for writ of mandate under California 

Code of Civil Procedure § 1085, will be judicially adjudicated. See ECF No. 187. 
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Case No. 17-CV-00007-LHK 

ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS

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United States District Court

Northern District of California

A public employee is not entitled to due process based on deprivation of a property interest 

in a position unless that employee has a “legitimate claim of entitlement” to the position. See 

Board of Regents v. Roth, 408 U.S. 564, 577 (1972). That entitlement “must be granted by state 

law,” Koepping v. Tri-County Metropolitan Transp. Dist. of Oregon, 120 F.3d 998, 1005 (9th Cir. 

1997), or “some other independent source.” Faurie v. Berkeley Unified School Dist., 2008 WL 

820682, at *8 (N.D. Cal. Mar. 26, 2008). “Under California law, county charters, rules and

regulations generally determine whether there is such an entitlement.” Weisbuch v. County of Los 

Angeles, 119 F.3d 778, 780-81 (9th Cir. 1997). Thus, an “oral representation of [Plaintiff’s] 

supervisors,” “untethered to specific positive law, is insufficient to create a property interest.” 

Faurie, 2008 WL 820682, at *8. “In other words, expectations based on oral representations, 

employment history, or positive evaluations are not sufficient to give the Plaintiff a property 

interest in [her] public employment.” Id. at *9. Accordingly, Plaintiff may not use an implied-infact contract claim to establish that she had a property right in her position. In addition, Plaintiff 

must show that she was deprived of the protected property interest in her employment, such as by 

being discharged.

Second, Plaintiff must show that she was denied adequate procedural protections. 

Brewster, 149 F.3d at 982; Loudermill, 470 U.S. at 538. “Due process requires that any 

deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing 

appropriate to the nature of the case.’” Wall, 653 F.3d at 968 (quoting Mullane v. Central Hanover 

Bank & Trust Co., 339 U.S. 306, 313 (1950)). The United States Supreme Court has held that due 

process “requires ‘some kind of a hearing’ prior to the discharge of an employee who has a 

constitutionally protected property interest in his employment.” Loudermill, 470 U.S. at 542 

(quoting Roth, 408 U.S. at 569–70); see also Clements v. Airport Auth. of Washoe Cty., 69 F.3d 

321, 332 (9th Cir. 1995) (holding that “the denial of a pre-termination hearing is a constitutional 

violation sufficient to support damages”). “[T]he pretermination ‘hearing,’ though necessary, need 

not be elaborate.” Loudermill, 470 U.S. at 545. A permanent public employee must receive “oral 

or written notice of the charges against him, an explanation of the employer’s evidence, and an 
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Case No. 17-CV-00007-LHK 

ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS

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United States District Court

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opportunity to present his side of the story.” Id. at 546. Furthermore, the employee must also 

receive a full post-termination hearing. Id. at 546–47 & n.12.

Finally, because Plaintiff is bringing her due process claim pursuant to 42 U.S.C. § 1983, 

Plaintiff must show municipal liability under the United States Supreme Court’s decision in 

Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). In the Court’s June 4, 

2021 Order re: Monell liability, the Court explained what Plaintiff must establish to show 

municipal liability. ECF No. 188. Specifically, the Court held that Plaintiff must show one of the 

following three bases for municipal liability: (1) “a municipal employee committed a 

constitutional violation pursuant to an expressly adopted official policy or a longstanding practice 

or custom which constitutes the ‘standard operating procedure’ of the local government entity”; 

(2) the decision-making official was a final policymaking authority; or (3) an official with final 

policymaking authority either delegated the authority to, or ratified the decision of, a subordinate. 

Ulrich v. City & County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (quotation omitted). 

B. Plaintiff’s Due Process Claim under the California Constitution

A due process claim under Article I, Section 7 of the California Constitution requires: (1) 

the deprivation of a protected property or liberty interest, and (2) the denial of adequate procedural 

protections. See Skelly, 15 Cal.3d at 206, 208 (considering whether the discharged employee had a 

property interest in his employment and whether the discharged employee received adequate 

procedural safeguards). 

Accordingly, first, Plaintiff must show that she was deprived of a protected property 

interest. In order to show that she had a property interest in her employment, Plaintiff must show 

that she was a permanent employee, not a probationary employee. “The California civil service 

employment scheme confers upon permanent employees ‘a property interest in the continuation of 

[their] employment which is protected by due process.’” Roe v. State Personnel Bd., 120 Cal. App. 

4th 1029, 1040 (2004) (quoting Skelly, 15 Cal. 3d at 206). By contrast, in California, nonpermanent employees “serve at the will of the employer and therefore do not possess any property 

interest in their continued employment.” Mendoza v. Regents of University of California, 78 Cal. 
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Case No. 17-CV-00007-LHK 

ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS

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App. 3d 168, 173 (1978); accord Walls, 653 F.3d at 968 (stating that non-permanent employees in 

California can be terminated at any time subject only to the limits of public policy). In addition, 

Plaintiff must show that she was deprived of the protected property interest in her employment, 

such as by being discharged. 

Next, Plaintiff must show that she was deprived of adequate procedural protections. 

The California Constitution requires that “the employee be accorded certain procedural rights 

before” removal. Skelly, 15 Cal.3d at 215 (Cal. 1975). Specifically, a discharged employee must 

receive “notice of the proposed action, the reasons therefor, a copy of the charges and materials 

upon which the action is based, and the right to respond, either orally or in writing, to the authority 

initially imposing discipline.” Id. The employee must have a meaningful opportunity to respond to 

the notice of the proposed action. Kempland v. Regents of University of California, 155 Cal. App. 

3d 644, 649–50 (1984) (concluding that employee’s due process rights were violated because the 

employee’s written response to the notice of intention to dismiss was not considered before he was 

terminated). In addition to these pretermination procedural rights, “[a] public employee is entitled 

to a full evidentiary hearing after the disciplinary action is imposed.” Duncan v. Dep’t of 

Personnel Admin., 77 Cal. App. 4th 1166, 1176 (2000); see also Skelly, 15 Cal. 3d at 215 (holding 

that “due process does not require the state to provide the employee with a full trial-type 

evidentiary hearing prior to the initial taking of punitive action”). 

IT IS SO ORDERED.

Dated: June 6, 2021

______________________________________

LUCY H. KOH

United States District Judge