The Good, The Bad, and the Unbelievable?

1
The Good, The Bad, and the Unbelievable?

• The Most Significant Decisions of 2005 (so far)

2
Pollak, Vida Fisher

• Daniel P. Barer
• Judy L. McKelvey

3
Claims Childhood Abuse

• In 2005, a 27-year-old discovers that in 1990 a
  school teacher molested her, causing her current
  psychological problems.
• Within six months of her discovery, she presents
  a claim against the school district.
• Is the claim timely?

4
Claims-Childhood Abuse

• It Depends on the Court.
• Los Angeles Appellate Court Untimely.
• County of Los Angeles v. Superior Court (N.L.)
  (2005) 127 Cal.App.4th 1263.
• San Diego Appellate Court Timely.
• Shirk v. Vista Unified School Dist. (2005) 128
  Cal.App.4th 156Review Granted.
• California Supreme Court will settle it.

5
Claims Childhood Abuse

• If the molestation is discovered while the victim
  is still a child, how long does he have to
  present a claim?
• If child did not perceive molestation was
  wrongful, cause of action accrues when parent
  discovers or should discover the molestation
• One year from that date to file late-claim
  application.
• Curtis T. v. County of Los Angeles (2004) 123
  Cal.App.4th 1405.

6
Claims Claim Variance

• A JPA terminates its general manager. The
  manager presents a claim alleging wrongful
  termination in retaliation for whistleblowing.
• He then files a lawsuit alleging termination in
  violation of public policy based on retaliation
  and violation of his first amendment rights.
• Did the manager have to mention those theories in
  his claim?

7
Claim Claim Variance

• No.
• The claim set forth the basic facts (fundamental
  acts or omissions and responsible parties) and
  cause of action (wrongful termination) on which
  the later suit was based.
• New facts that expand on the fundamental facts in
  the claim, and new theories that arent new
  causes of action (e.g. termination in violation
  of public policy) permitted.
• Causes of action not set forth in claim, and
  theories of recovery based on different acts or
  omissions than those in claim, are barred.
• Stockett v. Association of California Water
  Agencies Joint Powers Ins. Authority (2004) 34
  Cal.4th 441.
• See also Dixon v. City of Livermore (2005) 127
  Cal.App.4th 32 (claim alleging city and private
  company were joint venturers supported theory
  that the private company was the citys employee
  or agent).

8
Regulatory Takings

• A state law caps rents oil companies can charge
  gas station owners. An oil company contends that
  this regulation does not substantially advance
  its goal (keeping gas prices down) and is
  therefore a taking without compensation of its
  ability to make more money, in violation of the
  Fifth Amendment.
• Is any regulation that fails to substantially
  advance a government interest a taking?

9
Regulatory Takings

• No. Agins v. City of Tiburon(1980) 447 U.S.
  255s substantially advances language is not a
  valid method of identifying a compensable
  regulatory taking.
• In determining whether a regulation effects a
  regulatory taking, factors to be considered
  include
• Economic impact
• Interference with investment-backed expectations
• Physical invasion
• Extent of effect on property interests and
• Balance of benefits and burdens to promote the
  public good.
• Lingle v. Chevron U.S.A., Inc. (2005) 125 S.Ct.
  2074.
• See also Wisconsin Builders Assn v. Wisconsin
  Dept. of Transp. (2005) 702 N.W.2d 433.

10
Dangerous Property Conditions -Sidewalk

• Plaintiff trips on a rise in the city sidewalk in
  front of a store. A city ordinance makes the
  owner of property abutting a city sidewalk liable
  for injuries caused by dangerous conditions on
  that sidewalk.
• Can the city cross-complain against the store
  owner under the ordinance?

11
Dangerous Property Conditions - Sidewalk

• Yes. State law (Govt. Code 835) does not preempt
  city ordinances holding private property owners
  liable for injuries on adjacent city property.
• The property owner may also be held liable under
  a common-law duty to maintain the sidewalk.
• Gonzales v. City of San Jose (2005) 125
  Cal.App.4th 1127

12
Dangerous Property Conditions - Immunities

• A path in a state vehicular recreation area is
  filled with so many hazards it is impossible to
  safely negotiate. Eight accidents had occurred
  there. No signs warn of the hazards. A
  off-highway vehicle operator rides down the path,
  crashes, and is killed.
• Can the state be held liable?

13
Dangerous Property Conditions - Immunities

• No. The trail immunity (Govt Code 831.4)
  applies. The immunity applies to improved areas
  such as state recreational areas. The failure to
  warn does not affect the immunity.
• Astenius v. State (2005) 126 Cal.App.4th 472.

14
Employment Discrimination and Volunteers

• A disabled community volunteer, who had been
  issued a city uniform and identification card,
  had regularly assigned work hours, but who
  received no pay, is terminated from his position.
• Is the volunteer entitled to damages for wrongful
  discharge or employment discrimination under the
  Fair Employment and Housing Act (FEHA)?

15
Employment -- Discrimination

• No. A volunteer working for a public entity is
  not an employee and his position isnt
  protected under FEHA.
• Legal standards outside FEHA to be considered in
  defining an employee
• Direction or control of employer under
  appointment or contract of hire or
  apprenticeship. (CCR, Title 2, section
  7286.5(b).)
• Local ordinances defining employment or hiring
  process.
• Workers comp coverage (excludes public agency
  volunteers). (Labor Code section 3352(i).)
• Title VIIs definition of employment. (42 U.S.C.
  section 2000e et seq.)
• Mendoza v. Town of Ross (2005) 128 Cal.App.4th
  625.

16
Employment Retaliation

• A public employee alleged that she suffered
  retaliation for complaining about racial
  discrimination.
• The retaliation consisted of oral and written
  job criticism an appealable negative evaluation
  a suspension (not implemented due to leave of
  absence) and a lateral transfer.
• Can the employee sue under FEHA for retaliation?

17
Employment - Retaliation

• Probably.  Actionable retaliation is decided on a
  case-by-case basis, and requires an adverse
  employment action causing material and
  substantial changes to the terms and conditions
  of employment.

18
Employment - Retaliation

• Where public employee alleged retaliation
  consisting of job criticism, negative evaluation,
  suspension, and transfer, Court of Appeals held
  that such actions were not actionable under FEHA
  because they did not cause substantial and
  tangible harm (e.g., demotion, loss of pay or
  benefits, change in job title or
  responsibilities). 
• McRae v. Dept. of Corrections (2005) 127
  Cal.App.4th 779, review granted.

19
Employment-Retaliation

• But under a recent case that did not involve a
  public entity, the California Supreme Court held
  that actions such as job criticism and change of
  job responsibilities can be actionable under
  FEHA, if they meet the materiality test. 
• Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th
  1028.

20
Employment Age Discrimination

• Older police officers working for a city receive
  less generous raises than younger officers.
• Is that alone enough to establish liability under
  the Age Discrimination in Employment Act (ADEA),
  29 U.S.C. section 623?

21
Employment Age Discrimination

• No. Disparate impact alone isnt sufficient to
  state an age discrimination claim.
• The citys pay plan decisions were properly based
  on reasonable factors other than age (bringing
  salaries up to regional levels) and responded to
  the goal of retaining police officers. They did
  not violate the ADEA.
• Smith v. City of Jackson (2005) 125 S.Ct. 1536.
• Cf. Sloat v. Rapid City Area School Dist. No.
  51-4 (D.S.D. July 6, 2005) 2005 WL 1595583.

22
Police Liability-RICO

• Plaintiff alleges that LAPD Rampart CRASH
  officers falsely arrested him, and caused him to
  be falsely convicted and imprisoned for ADW by
  presenting false evidence. He alleges he lost
  employment and employment opportunities while
  under arrest and imprisoned.
• Can plaintiff sue the police officers for treble
  damages under the Racketeer Influenced and
  Corrupt Organizations Act ?

23
Police Liability - RICO

• Yes. RICO requires injury to business or
  property, determined under state law. Under
  California law, plaintiffs claims amount to
  interference with contract with potential
  contractual relations.
• But the treble damages are limited to the wages
  and wage opportunities he alleges he lost.
• Diaz v. Gates (9th Cir., en banc, 8/16/05, _ F.3d
  __ 2005 WL 1949879

24
Police Liability Premises Searches

• Police obtain a warrant to search a house where a
  street gang member resides for weapons. While
  there, they handcuff all of the inhabitants and
  detain them for the duration of the search, and
  question them about their immigration status.
• Are the police liable for violating the
  inhabitants Fourth Amendment Rights?

25
Police Liability Premises Searches

• No. Given the inherent danger of a weapons
  search, the police reasonably detained and
  handcuffed the inhabitants regardless of whether
  any actually posed a threat. The questioning was
  not an additional search.
• Muehler v. Mena (2005) 125 S.Ct. 1465.
• C.f. San Jose Charter of Hells Angels Motorcycle
  Club v. City of San Jose (9th Cir. 2005) 402 F.3d
  962 unreasonable conduct while executing search
  warrant, including shooting dogs.

26
Police Parolee Searches

• Plaintiff is a parolee. A condition of his
  parole is that he submit to warrantless searches.
  He is also the subject of an outstanding arrest
  warrant.
• While he is walking down the street, police stop
  and search him. They have insufficient
  reasonable suspicion to stop or search him.
  They do not know of his parolee status or arrest
  warrant until after searching him.
• Can the police be held liable for an illegal
  search?

27
Police Parolee Searches

• Yes. Even a probationer or parolee subject to
  warrantless searches cant be searched without
  reasonable suspicion. The arrest warrant does
  not justify the stop because the arresting police
  did not know of it.
• Moreno v. Baca (9th Cir. 2005) 400 F.3d 1152.
• C.f. People v. Reyes (1998) 19 Cal.4th 743
  searches of parolees subject to warrantless
  search condition does not require reasonable
  suspicion only need not be arbitrary or
  capricious.

28
Police-Liability for Placing Person in Peril

• A mother complains to police that a neighbors
  minor child molested her daughter. An officer
  states he will notify her before contacting the
  suspects family. He does not do so. After
  informing the mother, the officer states he will
  patrol the area. Relying on that, the mother and
  her husband stay home that night. The suspect
  attacks them in their home, killing the husband
  and wounding the mother.

29
Police Liability for Placing Persons in Peril

• Can the officer be held liable for the attack
  under 42 USC Section 1983?
• Yes. If the officer acted with deliberate
  indifference, he violated the mothers
  substantive due process rights by placing her in
  danger and then inducing reliance on false
  assurances.
• Split opinion.
• Kennedy v. City of Ridgefield (2005) 411 F.3d
  1134.

30
Condemnation and Redevelopment

• A city council determines the city is
  economically distressed. It forms a
  redevelopment agency, which plans to redevelop a
  residential area into a commercial park. It
  hopes to generate new jobs and revenue.
• Plaintiffs own homes in the redevelopment area.
  Their property is not blighted. They refuse to
  sell their land to the redevelopment agency. The
  agency condemns the plaintiffs property.

31
Condemnation and Redevelopment

• Has the agency violated the Fifth Amendment by
  taking property for a private, rather than a
  public purpose?
• No. An economic redevelopment plan is a public
  purpose. As long as the condemnation is part of
  a carefully-considered overall plan, the property
  taken need not be blighted.
• Kelo v. City of New London, Conn. (2005) 125
  S.Ct. 2655.
• But state law can require more than the US
  constitution does. California law prescribes
  that the a city may only take land for economic
  development purposes in blighted areas. Health
  Safety Code sections 33030-33037.

32
Brown Act Round-Up

• Two city council members (sole members of land
  use committee) hold private meeting on subject
  outside committees jurisdiction, then give
  counsel advisory opinion. They were not a quorum.
  Violation?
• No. Brown Act does not apply.
• Taxpayers for Livable Communities v. City of
  Malibu (2005) 126 Cal.App.4th 1123.

33
Brown Act Round-Up

• A city council holds a special meeting, closed
  session, to decide whether to terminate its
  financial director for misconduct. It agendizes
  the meeting as consideration of Public Employee
  (employment contract). Violation?
• Yes. Should at least agendize it as Public
  employee dismissal.
• Moreno v. City of King (2005) 127 Cal.App.4th 17 .

34
Brown Act Round-up

• Does a public body have to allow public comment
  on whether to place an item on the bodys agenda?
• No. The Act does not require that.
• Coalition of Labor, Agriculture Business v.
  County of Santa Barbara Bd. of Sup'rs(2005) 129
  Cal.App.4th 205.

35
Thank You

• Daniel P. Barer
• Judy L. McKelvey
• POLLAK, VIDA FISHER
• 1800 Century Park E., 4th Floor
• Los Angeles, CA 90067
• [phone]
• dpb_at_pvandf.com
• www.pvandf.com
• www.govlawweb.com