The Good The Bad and the Unbelievable The

The Good, The Bad, and the Unbelievable? The Most Significant Decisions of 2005 (so far)

Pollak, Vida & Fisher n Daniel P. Barer n Judy L. Mc. Kelvey

Claims – Childhood Abuse n n n 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?

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

Claims – Childhood Abuse n n 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; n One year from that date to file late-claim application. n Curtis T. v. County of Los Angeles (2004) 123 Cal. App. 4 th 1405.

Claims – Claim Variance n n n 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?

Claim – Claim Variance n No. n 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. n New facts that expand on the fundamental facts in the claim, and new theories that aren’t new causes of action (e. g. termination in violation of public policy) permitted. n Causes of action not set forth in claim, and theories of recovery based on different acts or omissions than those in claim, are barred. n Stockett v. Association of California Water Agencies Joint Powers Ins. Authority n (2004) 34 Cal. 4 th 441. See also Dixon v. City of Livermore (2005) 127 Cal. App. 4 th 32 (claim alleging city and private company were joint venturers supported theory that the private company was the city’s employee or agent).

Regulatory Takings n n 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?

Regulatory Takings n No. Agins v. City of Tiburon n In determining whether a regulation effects a regulatory taking, factors to be considered include: (1980) 447 U. S. 255’s “substantially advances” language is not a valid ’s “substantially advances” language method of identifying a compensable regulatory taking. n n n 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. n Lingle v. Chevron U. S. A. , Inc. (2005) 125 S. Ct. 2074. n See also Wisconsin Builders Ass’n v. Wisconsin Dept. of Transp. (2005) 702 N. W. 2 d 433.

Dangerous Property Conditions Sidewalk n n 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?

Dangerous Property Conditions Sidewalk n n n 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. 4 th 1127

Dangerous Property Conditions Immunities n n 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?

Dangerous Property Conditions Immunities n 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. n Astenius v. State (2005) 126 Cal. App. 4 th 472.

Employment – Discrimination and Volunteers n n 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)?

Employment -- Discrimination n No. A volunteer working for a public entity is not an “employee”; n Legal standards outside FEHA to be considered in defining an “employee” : and his position isn’t protected under FEHA. n n n 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. Worker’s comp coverage (excludes public agency volunteers). (Labor Code section 3352(i). ) Title VII’s definition of employment. (42 U. S. C. section 2000 e et seq. ) Mendoza v. Town of Ross (2005) 128 Cal. App. 4 th 625.

Employment – Retaliation n 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?

Employment - Retaliation n 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.

Employment - Retaliation n n 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). Mc. Rae v. Dept. of Corrections (2005) 127 Cal. App. 4 th 779, review granted.

Employment-Retaliation n n 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. L’Oreal USA, Inc. (2005) 36 Cal. 4 th 1028.

Employment – Age Discrimination n n 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?

Employment – Age Discrimination n n No. Disparate impact alone isn’t sufficient to state an age discrimination claim. The city’s 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.

Police Liability-RICO n n 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 ?

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

Police Liability – Premises Searches n n 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?

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

Police – Parolee Searches n n n 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?

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

Police-Liability for Placing Person in Peril n A mother complains to police that a neighbor’s minor child molested her daughter. An officer states he will notify her before contacting the suspect’s 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 wounding the mother.

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

Condemnation and Redevelopment n n 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.

Condemnation and Redevelopment n Has the agency violated the Fifth Amendment by taking property for a private, rather than a public purpose? n No. An economic redevelopment plan is a public purpose. As long n Kelo v. City of New London, Conn. (2005) 125 S. Ct. 2655. n as the condemnation is part of a carefully-considered overall plan, the property taken need not be blighted. 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.

Brown Act Round-Up n n n Two city council members (sole members of land use committee) hold private meeting on subject outside committee’s 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. 4 th 1123.

Brown Act Round-Up n 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? n Yes. Should at least agendize it as “Public n Moreno v. City of King (2005) 127 Cal. App. 4 th employee dismissal. ” 17.

Brown Act Round-up n n n Does a public body have to allow public comment on whether to place an item on the body’s 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. 4 th 205.

Thank You n Daniel P. Barer n Judy L. Mc. Kelvey POLLAK, VIDA & FISHER 1800 Century Park E. , 4 th Floor Los Angeles, CA 90067 (310)551 -3400 dpb@pvandf. com www. govlawweb. com n