Title: The Good, The Bad, and the Unbelievable?
1The Good, The Bad, and the Unbelievable?
- The Most Significant Decisions of 2005 (so far)
2Pollak, Vida Fisher
- Daniel P. Barer
- Judy L. McKelvey
3Claims 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?
4Claims-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.
5Claims 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.
6Claims 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?
7Claim 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).
8Regulatory 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?
9Regulatory 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.
10Dangerous 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?
11Dangerous 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
12Dangerous 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?
13Dangerous 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.
14Employment 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)?
15Employment -- 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.
16Employment 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?
17Employment - 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.
18Employment - 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.
19Employment-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.
20Employment 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?
21Employment 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.
22Police 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 ?
23Police 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
24Police 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?
25Police 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.
26Police 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?
27Police 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.
28Police-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.
29Police 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.
30Condemnation 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.
31Condemnation 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.
32Brown 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.
33Brown 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 .
34Brown 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. -
35Thank 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