Government Liability Update

Because Notice of Administrative Decision Contained Contradictory Statements about Finality, Statute of LImitattions Did Not Bar Writ Petition

In Alford v. County of Los Angeles, published July 1, 2020, the Second District Court of Appeal, Division 8 reversed a trial court's grant of summary judgment based on the statute of limitations.  An agency of the respondent county served a notice of an administrative decision that both stated that the decision was final, and that the decision would become final 90 days after it was placed in the mail.  It further stated that Code of Civil Procedure section 1094.6--the statute of limitations for filing a petition for writ of administrative mandamus--required the plaintiff to file any petition seeking review no later than the 90th day on which the decision is deemed final.  The plaintiff filed his administrative mandamus writ petition four months after the notice was served.  The trial court concluded that the petition was time-barred.

The appellate court ruled that the agency did not serve notice of its decision in compliance with the statute, and for that reason the statute of limitations did not bar the petition.  Section 1094.6 provides that where an agency decision is in writing, any petition challenging the agency decision must be filed within 90 days of the decision becoming final.  Under the statute, the decision becomes final on the date the decision is served by first-class mail with a copy of the affidavit of mailing.  The notice here did not clearly tell the plaintiff when the decision became final.  It gave the plaintiff two inconsistent dates on which the decision became final.  The petition could reasonably be deemed to mean that the decision would become final 90 days after mailing, and that the petitioner had 90 days from that date to file the petition.  Because the notice did not comply with the statute, the statute of limitations did not bar the petition.

Large Housing Developments That Included Low-Income Housing Did Not Violate FEHA or FHA Through Disparate Impact on Minorities

In Aids Healthcare Foundation v. City of Los Angeles (CH Palladium, LLC), published June 15, 2020, the Second District Court of Appeal, Division 3 affirmed dismissal, after demurrer, of a suit against the defendant city for allegedly violating the federal Fair Housing Act and the state Fair Employment and Housing Act.  The plaintiff alleged that the city's approval four separate multi-use housing projects within a one-mile radius in Hollywood would have a disparate impact on minority residents of the area by causing housing prices in the area to rise to the point where existing residents would no longer be able to afford to live there.

The appellate court ruled that the complaint failed to state a cause of action based on a disparate impact theory of liability. The theory requires that a city policy be an artificial, arbitrary, and unnecessary barrier to fair housing.  The approvals create housing.  That alone is not an absolute shield from disparate-impact liability.  But the policies also do not prohibit the construction of affordable housing, and do not physically remove affordable housing to make way for more expensive housing or other uses.  All of the housing projects included low-income housing.  Three of the projects would not displace any existing housing.  The fourth would involve demolishing 84 rent-stabilized units, but would replace them with 105 units restricted for very-low-income households.  Forty of the units will be reserved for former tenants of the demolished building.  Although gentrification might cause owners of existing housing to raise their prices, that would be the act of third parties, rather than the city. The FHA and FEHA cannot be used to force housing authorities to reorder their priorities.  That is what the suit attempted to force the city to do.  Because the plaintiff failed to show how the complaint could be cured by additional specific factual allegations, the trial court acted within its discretion in sustaining the demurrer without leave to amend.

Dismissals without Prejudice for Failure to State a Claim Count as Strikes under Prison Litigation Reform Act

In Lomaz v. Ortiz-Marquez, published June 8, 2020, the Supreme Court rejected an argument that a dismissal for failure to state a claim made without prejudice does not count as a "strike" under the Prison Litigation Reform Act, which bars prisoners from bringing suit in forma pauperis if they have had three or more lawsuits dismissed on the grounds that they were frivolous, malicious, or failed to state a claim on which relief may be granted.  Congress did not confine the strikes under the PRLA to dismissals with prejudice, or to frivolous lawsuits; it applied the statute to suits without merit, even if the dismissal is without prejudice.

Pleading Guilty to Disturbing the Peace Does Not Prevent Plaintiff from Suing under State Law for Excessive Force

In Kon v. City of Los Angeles, published June 1, 2020, the Second District Court of Appeal, Division 8 reversed an order dismissing the plaintiff's suit.  The plaintiff alleged that a police officer accused him of speeding, tackled the plaintiff while he was on the phone, put his knee in the plaintiff's back while the plaintiff was down, hit the plaintiff, and handcuffed him.  The officer alleged that the plaintiff was speeding, refused to provide his driver's license, insurance, and registration, pulled away from the officer's handcuffs and resisted arrest, and required subduing.  The plaintiff was charged with resisting arrest.  He pleaded guilty to disturbing the peace.  He then sued the officer for using excessive force.  He asserted causes of action under Civil Code section 52.1, assault, battery, and negligence.  The trial court dismissed the action because it concluded the allegation of resisting arrest barred his action.

The appellate court ruled the trial court erred.  Under Yount v. City of Sacramento (2008) 43 Cal.4th 885, a criminal conviction bars a subsequent civil suit arising out of the same incident if the allegations in the suit are inconsistent with the conviction.  This rule serves the goals of finality and consistency.  Here, the civil suit is about whether the defendant officer used excessive force.  The criminal case did not address or resolve that issue.  The civil suit therefore is not inconsistent with the conviction.  The civil suit may proceed.

California Public Records Act's Venue Statute Is Not Jurisdictional, and Does Not Supersede Venue Statute Governing Actions against State

In The California Gun Rights Foundation v. Superior Court (Department of Justice), published May 29, 2020, the Second District Court of Appeal, Division 3 issued a writ of mandate reversing a trial court's order transferring the underlying action for lack of jurisdiction.  The petitioner brought a California Public Records Act writ proceeding in the Los Angeles Superior Court, seeking records from the California Department of Justice and the California Attorney General.  The state presented evidence that the records sought were kept in servers in Sacramento, and that the personnel who maintained those records and responded to CPRA requests worked in Sacramento.  The state argued that under Government Code section 6259, part of the CPRA, the action had to be litigated in Sacramento rather than Los Angeles.  Section 6259, subdivision (a) provides, “Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court
shall order the officer or person charged with withholding the records to disclose the public record or show cause why the officer or person should not do so.”  The petitioner argued that under Code of Civil Procedure section 401, whenever an action against a state agency may or must be brought in Sacramento, it may be brought in any city or county of the State in which the Attorney General has an office.  The trial court concluded that section 6259 deprived the Los Angeles Superior Court of jurisdiction to entertain the petition, and ordered the petition transferred to Sacramento County.

The Court of Appeal ruled that the trial court erred in interpreting section 6259 as jurisdictional.  Instead, jurisdiction is set forth in Government Code section 6258, which provides that a CPRA writ petition may be brought "in any court of competent jurisdiction . . . ."  Superior Courts in California are courts of general jurisdiction, and the appellate court ruled that section 6259 should not be read to defeat the exercise of the court's discretion.  Instead, the court interpreted section 6259 as a venue statute.  Thus, absent another applicable statutory provision, venue in this case would be proper only in Sacramento County, where the records are kept.  But Code of Civil Procedure section 401 provides for jurisdiction in this case wherever the Attorney General has an office.  Since section 401's purpose is to reduce the expense of litigating against state agencies, section 401 predates the CPRA, and the Legislature was presumed to be aware of section 401 when it passed the CPRA, section 6259 of the CPRA does not supersede section 401.  Therefore, the Los Angeles Superior Court had jurisdiction to hear the case, and venue in that court was proper.

Agency May Not Shift Cost of Redacting Electronic Records Requested under Public Records Act to Requester

In National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, published May 28, 2020, the California Supreme Court reversed an appellate court decision allowing a city to shift the cost of editing exempt material out of police body camera footage requested under the California Public Records Act.  At issue was interpretation of Government Code section 6253.9, subdivision (b)(2).  Section 6253.9 requires agencies to produce electronic records requested under the CPRA in any electronic format in which the agency holds the information.  Under subdivision (b)(2), “the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record” if “[t]he request would require data compilation, extraction, or programming to produce the record.”   The city contended that redacting exempt material from electronic records such as video footage was "extraction" for which it could recover staff time and expenses.  The requester contended that "extraction" referred to constructing a record by removing data from a computer or other source.  The trial court agreed with the requester.  The appellate court agreed with the city.

The Supreme Court concluded that the requester's interpretation was correct.  Construing the language of the statute, the legislative intent of limiting the expense of requesting electronic records (by preventing agencies from increasing expense by printing out electronic records), and the statute's purpose, the Supreme Court interpreted the term "extraction" to cover costs uniquely associated with the production of electronic record copies—including the need to retrieve responsive data to produce a record that can be released to the public—but not the costs of redacting exempt information from the record.

One justice wrote a separate concurring opinion, opining that if a data retrieval method also included simultaneous redaction of exempt material, the opinion might not limit charging the requester the cost of retrieval.

Social Worker Did Not Violate Family's Fourteenth Amendment Rights by Sending False Letter about Custody to Court, because No Loss of Custody Occurred

In Dees v. County of San Diego, published May 27, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed a district court's summary judgment ruling, and affirmed in part and reversed in part the court's ruling on post-trial motions.  The defendant social worker took part in an investigation of an alleged impropriety concerning a stepfather and his daughter.  The social worker initially ordered that the stepfather's two stepdaughters be taken out of the stepfather's custody.  A family court then restored custody.  The social worker was ordered to wrap up her investigation.  Instead, the social worker interviewed one of the stepdaughters, who was nine and suffered from cognitive disabilities, at the stepdaughter's school.  The interview lasted five minutes.  The social worker advised the stepdaughter that she could have a school district employee present during the interview, and that the stepdaughter could end the interview at any time.  The stepdaughter did not request an employee be present, and did not terminate the interview.  After the interview, the police told the social worker that their investigation was closed.  The social worker then sent a letter to the family court falsely stating that the stepdaughters had been removed from the custody of their mother.  The family court never acted on the letter.  The mother and stepdaughter sued the social worker and the county, alleging that the letter violated their Fourteenth Amendment right to family association, and that the interview was a seizure of the girl that violated the Fourth Amendment.  The district court entered summary judgment on the Fourteenth Amendment claim.  The Fourth Amendment proceeded to trial, and the jury found that there was no Fourth Amendment seizure.  On the plaintiffs' post-trial motions, the district court granted the plaintiffs judgment as a matter of law on the Fourth Amendment claim.  It alternatively granted new trial.

The appellate panel unanimously affirmed the grant of summary judgment on the Fourteenth Amendment claim.  Ninth Circuit precedent establishes that, to establish a Fourteenth Amendment claim based on a minor being separated from his or her parents, plaintiffs must establish that an actual loss of custody occurred; a threat or investigation is not enough.  Since the family court did not act on the letter, and the mother did not actually lose custody, there was no Fourteenth Amendment violation.  The panel also unanimously ruled that the district court erred in granting judgment as a matter of law.  Because the interview was short, the girl did not ask for the interview to be terminated, and her emotional state after the interview was disputed, there was substantial evidence to support the jury's verdict.  But the majority affirmed the district court's alternative grant of new trial.  It deferred to the district court's ruling that the weight of the evidence was against the jury's decision.  A dissenting judge opined that based on the evidence, the district judge abused the judge's discretion in finding the weight of evidence against the verdict.

Court May Not Condition Intervention in Reverse-CPRA Suit on Waiver of Prayer for Statutory Attorney Fees

In Carlsbad Police Officer's Association v. City of Carlsbad (ACLU), published May 18, 2020, the Fourth District Court of Appeal, Division 1 reversed an order conditioning the intervention in a reverse California Public Records Act petition of the ACLU and various media organizations on the striking of the intervenors' prayers for attorney fees under Code of Civil Procedure section 1021.5.  Multiple police officer associations brought a reverse-PRA action against their respective agencies, seeking to limit the agencies' release of records under Senate Bill No. 1421.  The new law, expanding access to police records, took effect January 2019.  The police officer associations sought to prevent their agencies from releasing pre-2019 records, on the ground that the new legislation was not retroactive.  The ACLU and media organizations had CPRA requests pending with the agencies, seeking pre-2019 records.  They sought to intervene in the petition both on a permissive basis and as a matter of right.  The associations and some of the agencies opposed intervention.  The trial court permitted intervention, but conditioned it on the intervenors striking their requests for section 1021.5 fees.  After the trial court entered a judgment permitting release of pre-2019 records, the intervenors appealed the order conditioning intervention.

The appellate court ruled that the trial court erred. Successful intervenors in reverse-PRA actions are generally entitled to fees under section 1021.5 if they meet the criteria under the statute. Because the intervenors' interests in recovering records under their pending CPRA requests were affected by the reverse-CPRA order, and the existing parties were not interested in representing the intervenors' position, their intervention was as a matter of right.  The trial court's inherent power to control litigation entitled it to condition intervention on reasonable, housekeeping-type procedural limitations.  But it did not have discretion to impose a substantive limitation, such as conditioning intervention on giving up the right to seek attorney fees.

Equitable Tolling Does Not Apply to Deadline to Present Claim

In Willis v. City of Carlsbad, published May 12, 2020, the Fourth District Court of Appeal, Division 1 affirmed a judgment after jury trial in favor of the defendant city.  The plaintiff, a city police officer,  reported perceived misconduct in 2012.  In 2013, after the report was revealed, he was reassigned from a crimes of violence unit to patrol.  In 2013, he filed a retaliation complaint with the Labor Commission.  In 2013, he applied for open detective positions, but was passed over in favor of other candidates.  In early 2015, the plaintiff complained about a program he believed was an illegal quota.  In July 2015, he was passed over for a promotion.  In December 2015, he presented a claim for damages to the city, complaining of his 2013 transfer and his various denials of promotion.  In February 2016, he filed suit.  The court granted the city’s motion to strike his allegations of retaliation that occurred more than six months before he presented his claim.  The jury eventually found in the plaintiff’s favor that his reporting was a factor in the city’s decision to deny him the July 2015 promotion, but also found the city would have denied the promotion for independent reasons.  Judgment was entered for the city.  The plaintiff appealed the trial court’s decision on the motion to strike.  He argued, in the alternative, that his complaint to the Labor Commission equitably tolled his time to present a claim, or that his claim was timely under the continuous violation doctrine.

The appellate court ruled that the trial court properly struck the allegations of retaliation that occurred before June 2015, because the plaintiff’s claim was untimely.  The court rejected the argument that the time to present the claim was equitably tolled.  While a statute of limitations for filing a lawsuit may be equitably tolled while the plaintiff pursues an alternative remedy, equitable tolling does not apply to Government Code section 911.2’s six-month deadline to present a claim for damages.  The claim deadline is not a statute of limitations.  No case has held that the deadline to present a claim may be equitably tolled.  Instead, the claim deadline is strictly enforced, to promote the policies behind requiring claims for damages.  The appellate court also rejected the argument that the claim was timely because the continuous violation doctrine applies, delaying accrual until the last act of retaliation.  When his transfer requests were denied, and the positions he sought were filled, as part of the alleged retaliation, the acts of alleged retaliation gained permanence, and the cause of action for that retaliation accrued.

Councilmember Who Assists Appeal from Administrative Decision That Council Will Review Displays Improper Bias

In Petrovitch Development Company, LLC v. City of Sacramento (Johnson), published May 8, 2020, the Third District Court of Appeal affirmed a trial court decision issuing a writ of administrative mandate setting aside the respondent city's decision on an administrative appeal.  By an 8-3 vote, the city planning commission issued a conditional use permit allowing the petitioner to build a gas station in the shopping center zone of a development.  A neighborhood association opposed the station's construction.  It appealed the decision to the city council.  A councilmember who represented the neighborhood made statements at a public meeting that he did not feel the gas station would fit in, but said he had not yet made up his mind.  The councilmember communicated with the mayor, counting the votes of councilmembers against the project and providing the mayor with talking points against the project.  He texted with the head of the neighborhood association, who then contacted other councilmembers using points similar to the councilmember's talking points.  When asked at a councilmeeting whether he had talked to other councilmembers about the appeal, the councilmember replied, "I haven't talked to all the councilmembers."  Before the appeal hearing, the councilmember texted the association president about the sequence of events at the hearing, and advising him on how to respond to the person who spoke before the president spoke.  At the hearing, the councilmember moved to deny the permit.  The permit was denied seven to two.  The trial court granted the writ setting aside the decision on the ground of impermissible bias.

The appellate court agreed.  Neither the councilmember's statements at the public meeting, nor membership in the association appealing the decision, nor living in the neighborhood near the planned gas station established impermissible bias.  But his other actions--counting councilmembers supporting his position, e-mailing talking points to the mayor, coaching the appellant, then making the motion to deny the permit--crossed the line into impermissible advocacy on the issue before him.