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The Good, The Bad, and the Unbelievable?

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The Good, The Bad, and the Unbelievable? The Most Significant Decisions of 2005 (so far) Pollak, Vida & Fisher Daniel P. Barer Judy L. McKelvey Claims Childhood ... – PowerPoint PPT presentation

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Title: 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
  • (310)551-3400
  • dpb_at_pvandf.com
  • www.pvandf.com
  • www.govlawweb.com
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